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Decision No. 14,550

Appeal of NIGEL FRANCIS, on behalf of BRODUS BROWN, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 14,550

(March 23, 2001)

Cooper, Sapir & Cohen P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Deer Park Union Free School District ("respondent") that a friend whom he mentors, Brodus Brown, is not a district resident. The appeal must be dismissed.

Petitioner resides at 64 Lincoln Avenue, Deer Park, New York, within respondent"s district. In September 2000, petitioner"s friend, Patricia Myers, sought to enroll her son, Brodus Brown, in school in respondent"s district. In support of this request, Ms. Myers provided respondent with an affidavit from petitioner"s landlord indicating that she and her son resided with petitioner at the 64 Lincoln Avenue address. On the basis of this representation, Brodus began attending school in respondent's district on or about September 14, 2000. By letter dated October 19, 2000, the district's attendance teacher advised Ms. Myers that her son was not entitled to attend the district's schools because she was not a district resident. This appeal ensued. Petitioner"s request for interim relief was denied on November 28, 2000.

Petitioner asserts that Brodus has resided with him since August 2000 and that Brodus visits with his mother, Patricia Myers, in Wyandanch, New York on weekends and holidays. Petitioner further states that he and Ms. Myers split the cost of Brodus"s living expenses and that he exercises control over Brodus"s activity and behavior, but that Ms. Myers has not surrendered parental control over her son to him.

Petitioner requests a determination that Brodus is a resident of respondent"s district and is entitled to attend its schools without the payment of tuition. Respondent contends that petitioner has failed to rebut the presumption that Brodus resides with his mother, outside respondent"s district.

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 Lapidus, 40 Ed Dept Rep ___, Decision No. 14,408; Appeal of Epps, 39 id. ___, Decision No. 14,377; Appeal of Rosati, 38 id. 216, Decision No. 14,018).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Bogetti, 38 id. 199, Decision No. 14,014). 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 in the district (Appeal of Young and Billings, supra; Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007; Appeal of Garretson, 31 id. 542, Decision No. 12,729).

Petitioner admits that Patricia Myers has not surrendered parental control over her son and that she continues to pay a share of his living expenses. Since the petition does not indicate that there has been a total transfer of custody and control to petitioner, the record fails to provide a basis to find that respondent acted arbitrarily or capriciously in determining that Brodus is not a district resident.