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Decision No. 14,907

Appeal of O.E., on behalf of her son V.E., from action of the Board of Education of the Clarkstown Central School District regarding residency.


Decision No. 14,907  

(July 22, 2003)


David Isaacson, Esq., attorney for petitioner  

Lexow, Berbit & Associates, P.C., attorneys for respondent, Warren E. Berbit and Janet B. Rappe, Esqs., of counsel


MILLS, Commissioner.--Petitioner challenges a determination of the Board of Education of the Clarkstown Central School District ("respondent") that her son, V.E., is not a district resident.  The appeal must be dismissed.

During the 2002-2003 school year, V.E. was a sixteen-year-old student at Clarkstown North High School in respondent"s district.  He has attended district schools since the fifth grade.

District administrators became suspicious of the residence of petitioner and V.E. as early as 2001, but discontinued an investigation at that time.  Respondent"s administrators again became suspicious of their residence in April 2003 and conducted a surveillance between April 14 and 16, 2003.

Petitioner alleges that she lives at an address on New Hempstead Road, Spring Valley, New York, outside the district.  However, she alleges that V.E. lives at an address on Strawtown Road, New City, New York, within the district, with petitioner"s cousin, S.B., and her husband.  Petitioner alleges that V.E. lives with her cousin because of unspecified marital difficulties between petitioner and her husband.  Respondent denies that V.E. is a district resident and maintains that its surveillance suggests both petitioner and V.E. currently reside at the New Hempstead Road address, outside the district.

The appeal must be dismissed.  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 the 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 Karmin, 41 Ed Dept Rep 72, Decision No. 14,618; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377).

     A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Karmin, supra; Appeal of Epps, supra; Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014).  This presumption may be rebutted (Appeal of Epps, 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 transfer of custody and control to someone residing within the district (Appeal of Young and Billings, 39 Ed Dept Rep 158, Decision No. 14,201; Appeal of Rosati, 38 id. 216, Decision No. 14,018).  Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Karmin, supra; Appeal of Epps, supra; Appeal of Brown, 38 Ed Dept Rep 159, Decision No. 14,007).  While it is not necessary to establish parental custody and control through a formal guardianship proceeding (Appeal of Epps, supra; Appeal of Pernell, 30 Ed Dept Rep 380, Decision No. 12,502), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Epps, supra; Appeal of Garretson, 31 Ed Dept Rep 542, Decision No. 12,729; Appeal of Pernell, supra). 

Here, the petition itself is dispositive.  Petitioner states quite candidly that she provides money for V.E."s food and clothing, and further that she has not surrendered parental control over him to her cousin and her husband.  Based on these statements, it is clear that petitioner has not rebutted the presumption that V.E."s legal residence is with her, outside the district.  Accordingly, I do not find respondent"s determination that V.E. is not a district resident arbitrary or capricious.