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Decision No. 14,186

Appeal of JUNIE WHITE, on behalf of CANDICE and ERROL SADAAR, from action of the Board of Education of the Freeport Union Free School District regarding residency.

Decision No. 14,186

(July 30, 1999)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Freeport Union Free School District ("respondent") that her children, Candice and Errol Sadaar, are not residents of the district. The appeal must be dismissed.

On May 6, 1999, the district held an administrative residency hearing conducted by Marilyn Stuzin, the superintendent’s designee, at which petitioner and Donald Turner, the district attendance officer, were present. Mr. Turner testified that the family had been under investigation in the Fall of 1998, but the investigation had been discontinued because it was believed that the family had actually moved into the district. He reported that in March 1999 an employee of John W. Dodd Junior High School, which Candice attended, observed her taking the bus from Roosevelt to Freeport. Consequently, he reopened the investigation and observed one or both of the children taking the bus from Valdur and Nassau Roads in Roosevelt to Freeport on five separate occasions during March. He further observed that on several occasions at the end of the school day, Errol met Candice at Dodd Junior High and they boarded a bus for Roosevelt. Mr. Turner stated that during the course of his surveillance he never observed the children at 77 Shonard Avenue, the district address at which petitioner alleges Candice and Errol reside, and that even on the morning of the hearing on May 6, he observed Errol depart the Valdur Court residence. Additionally, two post office receipts addressed to petitioner at the Valdur Court address were signed for by Candice and Errol, and telephone information gave petitioner’s address and phone number as 3 Valdur Court, Roosevelt. Finally, Mr. Turner stated that Errol, who attends a BOCES aviation program, is eligible for bus transportation from 77 Shonard Avenue to BOCES, but instead takes a bus from Roosevelt.

After the hearing, Ms. Stuzin concluded that Candice and Errol were not bona fide residents of the district. She recommended to Superintendent Josephine Moffett that they be excluded from the district's schools and that the district exercise its right to collect tuition for both students. Superintendent Moffett adopted Ms. Stuzin’s recommendations, and informed petitioner by letter dated May 7 that the children’s last day of attendance would be May 14, 1999. She also informed petitioner that she owed $5,938.04 for back tuition from March 12 to May 14. This appeal ensued. Petitioner’s request for interim relief was granted on May 28, 1999.

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 Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Kehoe, 37 id. 14, Decision No. 13,792; Appeal of Allen, 35 id. 112, Decision No. 13,482). A student's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brown, supra; Appeal of Atallah, 36 Ed Dept Rep 78, Decision No. 13,663). 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, supra; Appeal of Mitchem, 37 Ed Dept Rep 257, Decision No. 13,849). 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 Peykar, 38 Ed Dept Rep 141, Decision No. 14,003; Appeal of Keenan, 36 id. 6, Decision No. 13,635).

Petitioner acknowledges in her petition that she is not residing in the district. Indeed, she attaches to the petition an unnotarized statement from the owner of 3 Valdur Court that she has permission to reside there for three months, from March – June 1999, until she is able to resolve her housing problems. Accordingly, the presumption is that her children reside with her outside the district as well. In addition, petitioner testified at the May 6 residency hearing that Errol resides with her in Roosevelt because it is more convenient for him. Thus, it is undisputed that Errol is not a district resident.

As for Candice, petitioner’s assertion in the petition that Candice has been residing at 77 Shonard Avenue for the past four years is contradicted by Mr. Turner’s report. Petitioner also attaches to the petition a guardianship petition in Nassau County Family Court, in which Edna Mapp, a family friend who resides at 77 Shonard Avenue, seeks guardianship of Candice. However, the court petition is dated May 7, 1999, the day following the residency hearing, and appears to have been initiated to circumvent respondent’s determination that the children are not residents of the district. Additionally, there is no evidence in the record of a court order actually granting guardianship, and petitioner provides no evidence that she has relinquished custody and control of Candice to Ms. Mapp. Moreover, Ms. Mapp states that she is seeking guardianship to enable Candice to "continue to attend school in the Freeport School District." Parents may not transfer legal guardianship of their children merely to achieve residence status for the children to take advantage of local schools (Matter of Proios, 111 Misc. 2d 252; Appeal of Peykar, supra; Appeal of Gilbert, 36 Ed Dept Rep 19, Decision No. 13,640). Where, as in this case, 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 West, 36 Ed Dept Rep 76, Decision No. 13,662).

In sum, petitioner has failed to rebut the presumption that both Errol and Candice reside with her outside the district. Accordingly, there is no reason to set aside respondent’s determination.