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Decision No. 14,939

Appeal of D.W., SR., on behalf of his sons D.W. and H.W., from action of the Deer Park Union Free School District regarding residency.


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


Decision No. 14,939


(August 26, 2003)


MILLS, Commissioner.--Petitioner appeals the determination of the Deer Park Union Free School District ("respondent") that his sons, D.W. and H.W., are not district residents.  The appeal must be sustained in part. 

Petitioner"s children were first enrolled in respondent"s schools in October 1999.  At that time, the boys" mother lived outside respondent"s district.  She submitted notarized statements that she relinquished custody and control of D.W. and H.W. to their uncle.  Their uncle submitted affidavits stating that he resided in respondent"s district and assumed full responsibility for the boys" support, education and medical care.  Based upon the affidavits of their mother and uncle, D.W. and H.W. were admitted to respondent"s schools. 

Respondent asserts that in August 2002 it became aware that the uncle no longer resided in the district.  Neither the uncle nor the boys" mother responded to the district attendance officer"s requests for information.  At some point, respondent sent the uncle and mother a notice stating that the boys would not be allowed to attend respondent"s schools after January 17, 2003.  Apparently neither responded.

 Respondent states that on January 17, 2003, petitioner contacted the district, advised that he is the boys" father and stated that the boys reside with him in the district.  It is unclear from the record before me what procedure respondent followed to address petitioner"s claims.  However, respondent evidently did not accept these claims and refused to allow D.W. and H.W. to attend its schools.  This appeal ensued.  Interim relief was granted on January 31, 2003. 

Petitioner contends that he is the biological father of D.W. and H.W.  He claims that he lives in respondent"s district and that the children reside with him during the week and spend weekends with their mother, who resides in another school district. 

Respondent asserts that neither the boys" mother nor their uncle, who is the custodian of record, resides within the district and that D.W. and H.W. therefore are no longer district residents.   Respondent also alleges that petitioner has failed to present sufficient proof of his residence within the 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 and related services to students whose parents or legal guardians reside within the district (Appeal of Pierre, 40 Ed Dept Rep 538, Decision No. 14,551; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Morgan, 38 id. 207, Decision No. 14,016).       A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Karmin, 41 Ed Dept Rep 72, Decision No. 14,618; Appeal of Epps, supra; Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014).  Where a child"s parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn Children"s Aid Society v. Hendrickson, et al., 54 Misc 337 aff"d 196 NY 551; Appeal of Weik and Teufel, 41 Ed Dept Rep 80, Decision No. 14,621). 

The presumption that a child"s residence is that of the child"s parents is rebuttable when there is a showing that there has been a total, and presumably permanent, transfer of custody and control to someone residing in the district (Appeal of Hardick, 41 Ed Dept Rep 300, Decision No. 14,693; Appeal of Epps, supra). While it is not necessary to establish parental custody and control through a formal guardianship proceeding (Appeal of Hardick, supra; Appeal of Epps, supra), 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 Hardick, supra; Appeal of Epps, supra; Appeal of Rivera, 38 Ed Dept Rep 119, Decision No. 13,997). 

Petitioner alleges he is the boys" father and includes copies of their birth certificates with his petition.  D.W"s birth certificate states that petitioner is his father.  H.W. was born approximately 16 months after his brother.  His birth certificate names no father. However, petitioner"s surname appears on the birth certificate.  It is not clear whether petitioner presented this evidence to respondent or whether respondent considered it. 

Petitioner also produces a copy of a lease for the rental of a downstairs apartment on Sammis Avenue in Deer Park from December 1, 2002 to December 1, 2003.  In addition, petitioner submits a letter from his employer to respondent, stating that he submitted a change of address form to the Human Resources Department, indicating a new address on Sammis Avenue as of December 1, 2002.  Again, it is unclear from the record whether respondent received or considered this information.  Respondent"s counsel states that he had a phone conversation with an unidentified child at the Sammis Avenue address, who told him that petitioner and his sons do not reside there.  Standing alone, this conversation is not sufficient credible evidence of non-residency.   

     Section 100.2(y) of the Commissioner"s regulations provides, in pertinent part:

Prior to making a determination of entitlement to attend the schools of the district, the board or its designee shall afford the child's parent, the person in parental relation to the child or the child, as appropriate, the opportunity to submit information concerning the child's right to attend school in the district.  When the board of education or its designee determines that a child is not entitled to attend the schools of such district because such child is neither a resident of such district nor entitled to attend its schools . . . , such board or its designee shall, within two business days, provide written notice of its determination to the child's parent, to the person in parental relation to the child, or to the child, as appropriate.

Section 100.2(y) further provides that the written notice must state, among other things, ". . . the basis for the determination that the child is neither a resident of the district nor entitled to attend its schools . . ." (8 NYCRR "100.2[y][2]) and that the determination of the board may be appealed to the Commissioner of Education (8 NYCRR "100.2[y][4]).

     It is not clear from the record before me whether petitioner was given an opportunity to submit information regarding the boys" right to attend school in respondent"s district.  As discussed above, the record does not indicate whether respondent received and considered the evidence presented with the petition.  Instead, respondent"s residency determination, excluding the boys as of January 17, 2003, was apparently based on the district"s inability to contact the boys" mother and uncle. 

There also is no indication in the record that a written notice was sent to petitioner pursuant to the Commissioner"s regulations stating the basis for respondent"s determination. 

Accordingly, it is appropriate to remand this matter for a full determination upon all the available evidence. (See, Appeal of Robinson, 41 Ed Dept Rep 90, Decision No. 14,624).  Upon remand, petitioner must be afforded an opportunity to present evidence regarding the boys" right to attend respondent"s schools (8 NYCRR "100.2[y]). This should include any evidence regarding petitioner"s authority and responsibility for the boys" custody as well as facts establishing their residence with him within the district.




IT IS ORDERED that respondent make a determination pursuant to 8 NYCRR "100.2(y) whether petitioner"s sons are residents and entitled to attend respondent"s schools.


IT IS FURTHER ORDERED that respondent permit D.W. and H.W. to attend school in the Deer Park Union Free School District, tuition-free, until respondent issues its residency determination.