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Decision No. 14,150

Appeal of DORIAN HALL, on behalf of ROBERT HALL, from action of the Board of Education of the Greenburgh Central School District No. 7 regarding residency.

Decision No. 14,150

(June 29, 1999)

Law Office of Arnold B. Green, attorneys for respondent, Giacchino J. Russo, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Greenburgh Central School District No. 7 ("respondent") that her son, Robert, is not a resident of the district. The appeal must be dismissed.

Petitioner alleges that Robert lives at 22 Knolltop Road, within respondent's district. During the 1998-99 school year, Robert attended eleventh grade at respondent’s Alternative High School. Sometime in the fall of 1998, Robert’s teacher reported to respondent's superintendent that Robert's father had informed her in a telephone conversation that Robert lived with petitioner in Yonkers. Thereafter, the teacher called petitioner in Yonkers whenever she needed to speak with a parent. In addition, Robert’s teacher alleges that during a telephone conversation with petitioner concerning his lateness to school, petitioner asked that respondent provide Robert with transportation to school from Yonkers.

By letter dated November 18, 1998, respondent’s superintendent notified petitioner that Robert did not qualify as a resident and requested that she provide documentation by November 23, 1998 establishing her son’s residence. The letter was sent by certified and regular mail to the 22 Knolltop Road address. The certified letter was returned unclaimed. Petitioner did not submit any information to respondent concerning her son’s residency.

By letter dated November 23, 1998, respondent’s superintendent advised petitioner that Robert would be excluded from the district’s schools as of November 30, 1998. The letter was sent by regular and certified mail to 22 Knollop Road, and was also sent home with the student in a sealed envelope. Again, the certified letter was returned unclaimed.

On December 3, 1998, petitioner allegedly admitted to the superintendent’s secretary that she resided in Yonkers, but indicated that Robert sometimes lived with his father within the district. Respondent continued to exclude Robert from the district’s schools. This appeal ensued. Petitioner’s request for interim relief was granted on January 4, 1999.

Petitioner contends that she resides with Robert and his father at 22 Knolltop Road within respondent’s district. Other than her statement of residency, petitioner provides no documentary or testimonial evidence that she and Robert reside within the district. Furthermore, petitioner provides no explanation of Robert's relationship with his father. She seeks a determination that Robert is a resident of respondent’s district and is entitled to attend its schools without the payment of tuition.

Respondent contends that petitioner and Robert reside in Yonkers, New York. Respondent submits affidavits from Robert’s teacher, the secretary to the superintendent and a licensed private investigator in support of its determination that Robert is not a resident of the district.

Education Law "3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Pacheco, 38 Ed Dept Rep 112, Decision No. 13,995; Appeal of Mitchem, 37 id. 231, Decision No. 13,849; Appeal of Murphy, 37 id. 162, Decision No. 13,831).

A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Petrie, 37 Ed Dept Rep 200, Decision No. 13,842; Appeal of Keenan, 36 id. 6, Decision No. 13,635; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). Where a child’s parents live apart, the child can only have one legal residence (Appeal of Petrie, supra; Appeal of Helms, 36 Ed Dept Rep 95, Decision No. 13,668; Appeal of Juracka, 31 id. 282, Decision No. 12,643).

Petitioner bears the burden of proving that she is entitled to the relief requested (8 NYCRR "275.10; Appeal of Hilsmann, 37 Ed Dept Rep 150, Decision No. 13,829; Appeal of Plesko, 37 id. 238, Decision No. 13,850). Petitioner has failed to meet that burden. In this case, petitioner failed to provide any documentation of residence within the district or submit a verified reply to the answer. Petitioner has not denied respondent’s statements nor submitted any evidence in affidavit or other form to rebut respondent’s allegations (Appeal of Lokkeberg, 38 Ed Dept Rep 134, Decision No. 14,001; Appeal of Reynolds, 37 id. 58, Decision No. 13,803).

To the contrary, as set forth above, respondent presented evidence of petitioner and Robert’s residence outside the district. Accordingly, I find the totality of respondent’s evidence, in conjunction with the lack of any evidence from petitioner, to be sufficient to support respondent’s determination. Thus, based on this record, I cannot find respondent’s determination to be arbitrary or capricious (Appeal of Bacchus, 38 Ed Dept Rep 123, Decision No. 13,998; Appeal of Eatemadpour, 37 id. 178, Decision No. 13,835). Accordingly, I find no reason to disturb respondent’s decision that Robert is not a resident of the