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Decision No. 14,178

Appeal of ENRIQUE MENDOZA, on behalf of KENNETH W. CALDERON, from action of the Board of Education of the Sewanhaka Central High School District regarding residency.

Decision No. 14,178

(July 28, 1999)

Douglas E. Libby, attorney for respondent, Bernadette Gallagher-Gaffney, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District ("respondent") that Kenneth Calderon is not a district resident. The appeal must be dismissed.

On March 24, 1998, petitioner, a resident of respondent's district, sought the admission of his nephew, Kenneth Calderon, to the district's schools. In his application, he listed Kenneth’s father’s residence as "unknown" and his mother’s as "Ecuador". He further stated that Kenneth’s mother was unable to care for her son financially, and could not provide a proper educational environment. He indicated that Kenneth lived with him on a temporary basis.

On March 26, 1998, an assistant to the superintendent informed petitioner that his request for the admission of his nephew was denied. On March 27, 1998 petitioner appealed this determination to the district's administrative review officer. In support of his appeal, petitioner submitted an alleged affidavit from the child's mother indicating that she had relinquished custody and control of her son and transferred such authority to petitioner. However, the district’s review officer rejected this affidavit as a falsified document. Apparently, the attorney who purportedly notarized the document was out of the country at the time and instead, petitioner’s daughter, who was employed by that attorney, falsified his signature. The alleged affidavit indicated that Kenneth was to remain with petitioner until he finished high school.

On April 24, 1998, the review officer denied petitioner’s appeal. He determined that there had not been a bona fide relinquishment of care, custody and control by Kenneth's parents. The review officer determined that the fraud relating to the use of the attorney’s notary stamp and forged signature seriously weighed against petitioner’s credibility. This appeal ensued. Petitioner's request for interim relief was denied on May 26, 1998.

The petition must be dismissed. 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 Byrd, 38 Ed Dept Rep 561, Decision No. 14,093; Appeal of Revella, 37 id. 65, Decision No. 13,805; Appeal of Keenan, 36 id. 6, Decision No. 13,635). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). However, this presumption may be rebutted (Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465; Appeal of McMullan, 29 id. 310, Decision No. 12,304). To determine whether the presumption has been rebutted, 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 Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Revella, supra; Appeal of Garretson, 31 id. 542, Decision No. 12,729).

Petitioner admits that Kenneth’s mother resides outside respondent's district and has submitted falsified documents as evidence of her relinquishment of custody and control over him. Accordingly, the evidence is insufficient to rebut the presumption that the student's residence is with his mother, outside respondent's district. Moreover, petitioner’s request for admission states that Kenneth's living arrangement is temporary and for the purpose of attending high school in the United States. It is well settled that a student has not established residence when he or she is residing with someone other than a parent solely to take advantage of the schools in the district (Appeal of Brown, supra; Appeal of West, 36 Ed Dept Rep 76, Decision No. 13,662; Appeal of Brutcher, 33 id. 56, Decision No. 12,973). Accordingly, because the custody arrangement was only intended to be temporary and for the purpose of facilitating the student's attendance of the district's schools, it does not satisfy the residency requirements.

In light of this determination, I need not address the parties’ remaining contentions.