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Decision No. 14,160

Appeal of PATRICIA A. WAITE, on behalf ADAM R. MICALIZIO, from action of the Board of Education of the East Irondequoit Central School District regarding residency.

Decision No. 14,160

(July 15, 1999)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Dennis T. Barrett and Norman H. Gross, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Irondequoit Central School District ("respondent") that her nephew, Adam Micalizio, is not a resident of the district. The appeal must be dismissed.

On October 27, 1998, the principal of respondent's Eastridge Junior High School informed petitioner that her nephew, an 8th grade student, would be dropped from the school's attendance rolls, effective November 4, 1998, because he was not a resident of respondent's district. On October 30, 1998, petitioner sent a letter to respondent's assistant superintendent for instruction, contending that her nephew was a resident of the district and requesting a meeting with the assistant superintendent.

The assistant superintendent, who is also respondent's residence determination officer, treated petitioner's letter as an appeal of the principal's determination and subsequently met with petitioner and the child's mother to discuss the child's residence. By letter dated, December 2, 1998, the assistant superintendent informed petitioner that her appeal was denied, but that her nephew would be allowed to remain in attendance until the end of the marking period on January 21, 1999.

Petitioner commenced this appeal on December 29, 1998. Petitioner requested a stay of respondent's determination pending a final decision in her appeal. Respondent subsequently indicated that it would not oppose petitioner's application for a stay order and would permit the child to attend its schools pending the outcome of this appeal.

Petitioner alleges that her nephew resides with her within respondent's district and is entitled to attend respondent's schools on a tuition-free basis.

Respondent denies that the child is a resident of the district and contends that petitioner has failed to establish a total and permanent transfer of custody of the child to petitioner.

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 Dimbo, 38 Ed Dept Rep 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926; Appeal of Simond, 36 id. 117, Decision No. 13,675). It is presumed that a child resides with his or her parents (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, supra; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). However, this presumption may be rebutted in a proper case (Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465; Appeal of McMullan, 29 id. 310, Decision No. 12,304). To rebut the presumption, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729). Where the facts of the situation contradict the claim of a complete transfer of custody, the presumption of residence with the student's parent is not rebutted (Appeal of Galay, et al., 37 Ed Dept Rep 128, Decision No. 13,821; Appeal of Simond, supra, at p. 121).

Petitioner alleges that her nephew is living with her "for an undetermined amount of time" and "indefinitely" because the child's mother is rarely at home during the week since her job requires frequent travel, and petitioner can provide the supervision and guidance that the child needs. Petitioner also alleges that the child's father has a drinking problem which adversely affects the child. Petitioner alleges that she has taken full responsibility for supporting the child and provides him with shelter, food and clothing. Petitioner also submits a custodial affidavit in which she states that her nephew has been living with her permanently since July 1998 but that the child will on occasion go to visit his mother at her address and stay overnight.

However, respondent alleges that the child still resides with his mother and father regularly on weekends and submits the affidavit of an investigator it employed to verify the residence of petitioner's nephew. The investigator states that petitioner informed him that the child was currently living with petitioner during the week and spending weekends with the child's mother at her house in Rochester; that the child's mother informed him that she and petitioner had made a custody arrangement permitting the child to spend weeknights with petitioner while spending weekends in Rochester; and that it is his opinion based upon the evidence provided that the child was splitting his time between petitioner's residence during the week and his parent's home in Rochester on the weekends. Respondent also submits the affidavit of its assistant superintendent for instruction, who states that petitioner and the child's mother met with him and explained that the child lived with petitioner during the week and with the child's parents on weekends. The assistant superintendent states that the evidence presented to him indicated that the child still resides with his mother and father regularly on weekends.

I also note that the child's medical insurance is provided through his father's insurance policy. While this fact, in and of itself, is not conclusive or determinative of the child's residence, it is additional evidence of the parents' continuing control over the child and that the alleged transfer in custody is not total and permanent.

Upon the record before me, I find that there has been no total, permanent transfer of custody of the child from the child's mother to petitioner. It appears from the record that the placement of the child with petitioner, although presumably for an indefinite duration, is conditional and temporary in that it is dependent upon the mother's present employment circumstances and domestic difficulties in the parents' residence. Thus, the record before me provides no basis to find that respondent acted arbitrarily in determining that Adam Micalizio is not a resident of the district based upon petitioner's failure to effect a total, permanent transfer of custody of the child.