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Decision No. 15,042

Appeal of BOBBY TAYLOR from action of the Board of Education of the Malone Central School District regarding residency.


Decision No. 15,042


(March 30, 2004)


Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, David W. Larrison, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the determination of the Malone Central School District ("respondent") that he is not a district resident.  The appeal must be dismissed.

Petitioner, who turned 18 in June 2002, attended respondent"s school during the 2002-2003 school year.  On February 26, 2003, after moving outside the district, petitioner"s parents filed three change of address forms on behalf of their children.  The forms for petitioner"s siblings listed Quarry Road, outside the district, as their new address.  The form for petitioner listed Bentley Avenue, within the district, as petitioner"s new address.  Thereafter, respondent"s assistant superintendent/attendance officer ("attendance officer") sent petitioner and his parents a residency questionnaire to complete and return to the attendance officer, which they did not do.  On June 23, 2002, the attendance officer issued a determination of non-residency, based on the failure to return the questionnaire.  This appeal ensued.  Petitioner"s request for interim relief was denied on September 5, 2003.

Petitioner states that he moved in with a friend, within respondent"s district, and intends to live there until he graduates.  Petitioner further states that he began living apart from his parents to finish school within respondent"s district, that he sometimes lives with his parents, and all of his mail is sent to their address.  In addition, petitioner submits an unsworn letter from his friend explaining that petitioner will live with her during the 2003-2004 school year, but that his mailing address will remain at his parents" home.  Petitioner requests a determination that he is a resident of respondent"s district and is entitled to attend its schools without the payment of tuition.

Respondent maintains that a child"s residence is presumed to be that of his or her parents or legal guardian, and that petitioner has not rebutted this presumption because he stays with his parents from time to time and has all of his mail sent to their address.  Respondent further contends that petitioner moved for the sole purpose of attending school within the district.  Respondent also states that petitioner and his parents did not complete the requested residency questionnaire and otherwise failed to provide any information to establish petitioner"s residency 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 to students whose parents or legal guardians reside within the district (Appeal of Hutchinson, 42 Ed Dept Rep 310, Decision No. 14,865; Appeal of Vazquez, 42 id. 245, Decision No. 14,841).  A student"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Hutchinson, supra; Appeal of Vazquez, supra).  While this presumption may be rebutted upon a determination that there has been a total and presumably permanent transfer of custody and control to someone residing within the district (Appeal of Maxwell, 42 Ed Dept Rep 134, Decision No. 14,799; Appeal of Donohue, 41 id. 26, Decision No. 14,601), it is well settled that a student has not established residence when he or she is residing with someone other than a parent solely to take advantage of the schools in the district (Appeal of Vazquez, supra; Appeal of Cuesta, 42 Ed Dept Rep 6, Decision No. 14,755).

Although petitioner was 18 at the time of the determination, the petition does not allege that he is emancipated nor does the evidence in the record support such a claim.  Consequently, petitioner"s residence is presumed to be that of his parents for the purposes of "3202(1) (Appeal of Leslie, 38 Ed Dept Rep 194, Decision No. 14,013).  Since petitioner admits that he still lives with his parents from time to time and that his mail is sent to their address, I find that he has failed to rebut the presumption of parental residence.  Moreover, petitioner admits that he is living with his friend for the sole purpose of attending respondent"s school.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of B.O. and D.O., 42 Ed Dept Rep 42, Decision No. 14,769).  I find that petitioner has failed to meet that burden.