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Decision No. 14,180

Appeal of WENDY SWEZEY, on behalf of LUCAS WELCH, from action of the Board of Education of the Galway Central School District regarding residency.

Decision No. 14,180

(July 28, 1999)

Robert E. Van Vranken, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Galway Central School District ("respondent") that Lucas Welch is not a district resident. The appeal must be dismissed.

Petitioner Wendy Swezey is a resident of respondent’s district. She asserts that Lucas Welch, who was 16" years of age at the time of the appeal, lives with her because he had an altercation with his mother and stepfather. Lucas’ father’s whereabouts are unknown. Lucas states that his last contact with his mother was on October 3, 1998, that he supports himself by doing odd jobs and intends to live with petitioner in respondent’s district for at least two years until he graduates from high school. On October 4, 1998, Lucas verbally requested admission to respondent’s high school. According to respondent, the request was verbally denied on October 4 based on the information provided and the fact that Lucas’ mother was a resident of the City School District of the City of Saratoga Springs. Lucas subsequently made a written request for admission on October 19, which was verbally denied on October 21.

On October 22, 1998, Lucas attempted to commence an appeal to the Commissioner by filing a petition on his own behalf. He also submitted to respondent an Affidavit of Emancipation. Upon receipt, Superintendent Peter G. Bowers asked Lucas to complete a Student Residency Questionnaire. He also requested that Lucas provide official documentation to prove his age, his means of support, and an explanation of the circumstances surrounding his alleged emancipation. The district received the questionnaire from Lucas on October 27. By letter dated October 28, Superintendent Bowers informed him that the questionnaire was incomplete and identified the missing information. The superintendent also informed Lucas that "based on the limited information supplied, to date, your application for residency would be denied." Respondent asserts that the superintendent also spoke with Lucas’ mother regarding his request to be treated as an emancipated minor. According to respondent, the mother stated that she lived within the City School District of the City of Saratoga Springs, that she was willing to provide for Lucas’ financial needs, and that she claimed Lucas as a deduction on her most recent tax return.

By letter dated November 10, 1998, Superintendent Bowers denied Lucas’ application for admission because of his failure to disclose the information requested in his October 28 letter. In the interim, on October 30, my Office of Counsel rejected the initial petition filed October 22, since it was filed by a person under the age of eighteen. On November 19, Ms. Swezey filed the instant petition on Lucas’ behalf, which is virtually identical to the earlier one. In this petition, Lucas claims he is estranged from his parents and has been out of school since October 15. Petitioner states that Lucas’ mother has nothing to do with him, but will not transfer guardianship to her or have him emancipated. Petitioner claims she does not possess the information the district requires and cannot obtain it without the mother’s help. Petitioner’s request for interim relief permitting Lucas to attend the schools of the district pending a decision on the merits was granted on December 9, 1998.

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 Kehoe, 37 id. 14, Decision No. 13,792; Appeal of Keenan, 36 id. 6, Decision No. 13,635). A student'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 Atallah, 36 id. 78, Decision No. 13,663). Where a student lives apart from his or her parent or legal guardian and the parent continues to exercise custody and control of the child and to support the student, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Kehoe, supra; Appeal of Keenan, supra). Additionally, when the sole reason the student is residing with someone other than the parent is to take advantage of the schools of the district, the student has not established residence (Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of West, 36 id. 76, Decision No.13,662; Appeal of Brutcher, 33 id. 56, Decision No. 12,973).

By establishing the status of an emancipated minor, a pupil may rebut the presumption that his or her residence is with one's parents (Appeal of Clary, 33 Ed Dept Rep 72, Decision 12,980; Appeal of Popp, 31 id. 546, Decision 12, 731). For purposes of establishing residency under Education Law "3202, a student is considered emancipated if he or she is beyond the compulsory school age, is living separate and apart from his or her parents in a manner inconsistent with parental custody and control, is not receiving financial support from his or her parents, and has no intent to return home (Appeal of Clary, supra).

Applying these factors to the record before me, I find that petitioner has not sufficiently rebutted the presumption that Lucas’ residence is that of his mother. Lucas and petitioner have failed to provide the requested information necessary to make a determination that Lucas is emancipated and a resident of the district. Respondent correctly asserts that there is no affidavit from petitioner explaining her relationship with Lucas, whether she receives rent or supports him, or whether she receives support from Lucas’ mother. While petitioner made a notation on the questionnaire referencing child protective services, she fails to provide any documentation or evidence to support or confirm this notation. Furthermore, there is no evidence that Lucas’ mother has relinquished control over him. To the contrary, the scant evidence in the record suggests that his mother is willing to provide for his financial needs. Consequently, while it is apparent there are significant problems between Lucas and his mother and stepfather, petitioner has failed to meet her burden despite several opportunities of rebutting the presumption that Lucas’ residence is that of his mother or of proving that Lucas is an emancipated minor. Therefore, respondent's determination that Lucas is not a resident of its district is not arbitrary or capricious and will not be set aside.

While the appeal must be dismissed for the above reasons, I note that petitioner retains the right to reapply to the district for admission on Lucas’ behalf at any time (Appeal of Smith, 39 Ed Dept Rep ____, Decision No. 14,163).