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Decision No. 14,320

Appeal of DONALD WEAVER, on behalf of JESSICA LYNN BURTON, from action of the Board of Education of the Pine Bush Central School District regarding residency.

Decision No. 14,320

(March 7, 2000)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pine Bush Central School District ("respondent") that his niece, Jessica Lynn Burton, is not a district resident. The appeal must be dismissed.

Petitioner resides within respondent's district, while Jessica's mother, Lisa Tyson-Moreno, resides in a neighboring district. In August 1999, petitioner attempted to enroll Jessica in respondent's schools. A residency hearing was held on August 30, 1999 at which time petitioner and Ms. Tyson-Moreno submitted affidavits regarding the care and custody of Jessica. By letter dated August 31, 1999, respondent's designee for residency issues notified Ms. Tyson-Moreno that Jessica would not be allowed to attend respondent's schools because the care and custody of Jessica had not been transferred to petitioner. This appeal ensued and petitioner's request for interim relief was denied on September 20, 1999.

Petitioner contends that Jessica lives with him because her mother's work schedule prevents her from adequately supervising Jessica. Petitioner also contends that he supports Jessica, provides for her necessities and exercises control over her activities and behavior. Petitioner submits a notarized statement from Ms. Tyson-Moreno allegedly giving petitioner full care and custody of Jessica.

Respondent contends that its determination was not arbitrary or capricious and that the statements in the petition are contrary to statements petitioner and Ms. Tyson-Moreno made at the residency hearing. Respondent alleges that Ms. Tyson-Moreno only executed the notarized statement in response to its determination and is, therefore, not credible.

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.

This statute limits the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Williams, 39 Ed Dept Rep 73, Decision No. 14,177; 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 Williams, supra;Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Gwendolyn B., 32 id. 151, Decision No. 12,787). However, this presumption may be rebutted (Appeal of Bogetti, supra; Appeal of Menci, 35 Ed Dept Rep 61, Decision No. 13,465). 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 in the district (Appeal of Mendoza, 39 Ed Dept Rep 74, Decision No. 14,178; Appeal of Revella, supra; Appeal of Garretson, 31 id. 542, Decision No. 12,729).

Petitioner has not rebutted the presumption that Jessica resides with her mother. The only evidence petitioner submits is a brief notarized statement by Ms. Tyson-Moreno purporting to give petitioner full care and custody of Jessica. In opposition, respondent submits copies of an affidavit executed by petitioner and one page of an affidavit apparently executed by Ms. Tyson-Moreno at the residency hearing. In petitioner's sworn affidavit he states that Jessica is only living with him until her mother's work schedule permits her to return to her mother. It further states that Jessica's food, clothing and other necessities will be provided by her mother and that education and medical decisions will be made jointly by petitioner and Ms. Tyson-Moreno. Thus, on the record before me, I cannot conclude that respondent's determination was arbitrary, particularly given the fact that Ms. Tyson-Moreno's brief statement purporting to transfer custody was not made until after respondent's determination. Even given this statement, the weight of the credible evidence does not show a total, and presumably permanent, transfer of custody and control to petitioner. Accordingly, there is no basis to reverse respondent's determination.