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Decision No. 14,622

Appeal of CURTIS THOMAS, on behalf of MONIQUE THOMAS, from action of the Board of Education of the Elmont Union Free School District regarding residency.

Decision No. 14,622

(August 13, 2001)

Colum P. Nugent, Esq., attorney for respondent

CATE, Acting Commissioner.--Petitioner, the paternal grandfather of Monique Thomas, appeals the determination of the Board of Education of the Elmont Union Free School District ("respondent") that Monique is not a district resident. The appeal must be dismissed.

Petitioner resides within respondent's district. In February 2000, Monique's parents enrolled her in respondent's schools using petitioner"s address. It is undisputed that Monique's mother resides in a neighboring district. It is unclear where Monique's father resides, although it appears that he sometimes stays with his wife and has also intermittently lived with petitioner. During the fall of the 2000-01 school year, Monique's kindergarten teacher reported to district administrators that Monique sometimes came to school with a change of clothes and that her father paid for her lunch ticket with a personal check bearing both their names and an address outside the district. Respondent conducted an investigation and discovered that the Department of Motor Vehicles and the Social Security Administration had several out-of-district addresses for both Nicole and Charles. Respondent also arranged for a surveillance on four days over a three-week period. On each of the four days, it was reported that Monique either left for school or returned in the evening to an out-of-district address. Respondent conducted a residency hearing on February 2, 2001, at which petitioner and Monique's father appeared. Respondent determined that Monique was not a district resident and this appeal ensued. Petitioner's request for interim relief was withdrawn when respondent agreed to allow Monique to continue in its schools through the end of the 2000-01 school year.

Petitioner asserts that he has an agreement with Monique's parents to care for the child and that all three adults financially support her. He further claims that Monique visits with her mother on weekends. He contends that Monique's father lived with him, but that he asked him to move out. Petitioner contends that Monique lives with him because "hardship and financial difficulties were unbearable for the natural parents to handle." He seeks a determination that Monique is a district resident.

Respondent contends that Monique is staying with petitioner solely to take advantage of its schools. Respondent argues Monique's parents have not relinquished custody and control of Monique to petitioner and that, since they reside in another district, Monique is not a resident of its district. Respondent further contends that petitioner lacks standing to bring this appeal.

Initially, I will address the issue of standing. An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that she or he has suffered personal damage or injury to her or his civil, personal or property rights (Appeal of Ramirez, 40 Ed Dept Rep __, Decision No. 14,449; Appeal of Cron, 38 id. 149, Decision No. 14,005; Appeal of Bocek, 37 id. 130, Decision No. 13,822). In this case, petitioner is a resident of respondent"s district. As such, a child residing in his household for whom the presumption of parental residence has been rebutted may attend district schools tuition-free. Petitioner alleges that respondent has abrogated that right, and I, therefore, find that petitioner may bring an appeal to challenge respondent's action (Appeal of Ramirez, supra; Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Cron, supra).

Turning to the merits, 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 Pierre, 40 Ed Dept Rep __, Decision No. 14,551; Appeal of Lapidus, 40 id. ___, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

Residence is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside within the district (Appeal of Silvestro, 40 Ed Dept Rep ___, Decision No. 14,476; Appeal of Gentile, 39 id. 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016). Additionally, a child"s residence is presumed to be that of his or her parents or legal guardians (Appeal of Young and Billings, supra; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Cortes, 37 id. 114, Decision No. 13,818). However, this presumption may be rebutted (Appeal of Juarez, 39 Ed Dept Rep 184, Decision No. 14,208; Appeal of Brown, 38 id. 159, Decision No. 14,007; Appeal of Murphy, 37 id. 162, Decision No. 13,831). 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 Juarez, supra; Appeal of Gorrasi, 35 Ed Dept Rep 68, Decision No. 13,467). Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted and the child"s presence remains with the parent (Appeal of Bogetti, supra; Appeal of a Student with a Disability, 37 Ed Dept Rep 173, Decision No. 13,833).

The only evidence petitioner submits in support of his petition is a copy of a Family Court application for custody of Monique, dated after respondent's residency hearing. There is no evidence in the record that the Family Court has ruled on his petition and his testimony at the hearing suggests that he initiated the process in response to respondent's residency inquiry. Notably absent from the record is any evidence indicating that Monique's parents have relinquished custody and control over her. Petitioner's testimony at the hearing depicts his role as a back-up caregiver who is available when Monique's parents are unable to care for her. His concern is to provide stability for Monique so that her parents' difficulties don't adversely affect her. However worthy petitioner's intentions, he does not offer sufficient evidence in the record of this appeal to establish that he has complete custody and control over Monique. In light of his testimony and the evidence presented by respondent as a result of its investigation, I find that petitioner has not rebutted the presumption that Monique resides with her parents outside respondent's district.

I note, however, that petitioner may reapply for Monique's admission to respondent's schools at any time if the circumstances presented in this appeal change or he can provide additional evidence that Monique's parents have conveyed complete custody and control to him.