Decision No. 12,545

(July 3, 1991)

SOBOL, Commissioner.--Petitioner appeals from respondent's determination to terminate petitioner's son's attendance in the Eastchester Union Free School District (the "District") because he is not a resident. On March 5, 1991, I issued an interim order directing respondent to admit Vincent Barron to public school in the District pending my final determination on the merits of this appeal. The appeal must be sustained.

Petitioner resides in the District, and is divorced from Vincent's mother, who resides in the Bronx. Vincent lived with his mother in the Bronx pursuant to a divorce decree until sometime in March 1990, when he allegedly came to live with petitioner at his home in Eastchester and began attending the Eastchester schools. On January 3, 1991, following a hearing, the superintendent of schools found that Vincent was a resident of the Bronx, not Eastchester, and was not, therefore, entitled to attend the Eastchester schools tuition-free. This appeal followed.

The District alleges that Vincent actually lives with his mother in the Bronx, not with his father in Eastchester. In support of its claim, the District submits the affidavit of Bud Malfetano, the school attendance officer. Mr. Malfetano states that he visited petitioner's residence on the morning of Sunday, December 30, 1990, and did not find Vincent at home. He opines that the size of petitioner's apartment makes it "inconceivable" that Vincent actually resides there. He also alleges that Vincent has been frequently seen by several school employees on the Metro-North train, ostensibly commuting between his mother's home in the Bronx and school in Eastchester. Finally, Mr. Malfetano attributes Vincent's repeated tardinesses at school to the lengthy morning commute from the Bronx.

Petitioner admits that Vincent stays intermittently with his mother in the Bronx, but contends that his permanent residence is in Eastchester. Petitioner submits an executed and notarized stipulation which purports to modify the parents' divorce decree and transfer custody of Vincent to petitioner, effective March 31, 1990. Petitioner also submits a copy of an Eastchester Public Library card issued to Vincent at his Eastchester address, and copies of Vincent's medical bills addressed to petitioner.

Education Law '3202(1) provides, in pertinent part:

For purposes of this provision, a child's residence is presumed to be that of his parents (Matter of Forde, 29 Ed Dept Rep 359; Matter of Delgado, 24 id. 279; Matter of Shelmidine, 22 id. 206). In cases where the 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; Matter of Manning, 24 Ed Dept Rep 33). Where the child's parents are divorced and a court awards custody of the child to one parent, as in this case, the child's residence is presumed to be with the custodial parent. Although Vincent's parents attempted by stipulation to make petitioner Vincent's custodial parent, that stipulation has no legal effect because the divorce decree awarding custody to Vincent's mother can only be modified by the court which entered it (Chirumbolo v. Chirumbolo, 75 AD2d 992, 429 NYS2d 112; In re Jane B., 85 Misc. 2d 515, 380 NYS2d 848). Absent such modification, Vincent's mother retains legal custody. Accordingly, Vincent's residence is presumed to be with his mother in the Bronx.

The presumption that Vincent resides with his custodial parent, however, is rebuttable (see, Matter of Forde, 29 Ed Dept Rep 359). In determining residency for a child like Vincent, who claims he is not living with the custodial parent, a board of education must consider several factors, including the intent of the family members to have the child reside in the district (Matter of Forde, 29 Ed Dept Rep 359; Matter of Richards, 25 id. 38; Matter of Whitman, 24 id. 337). In cases where the child's time is divided between two households, the determination of the child's residence must rest ultimately with the family (Matter of Forde, 29 Ed Dept Rep 359).

In this case, the stipulation purporting to transfer custody of Vincent from his mother to his father, although not legally binding, is compelling evidence that Vincent's mother, as custodial parent, consented to her son's legal residence with his father. That stipulation, together with the library card and physician's bills, evince the family's intent that Vincent live with his father.

The District's evidence to the contrary is unpersuasive. The District's attendance officer visited petitioner's residence only once -- and that was on a holiday weekend. Vincent's absence from the home on that single occasion is not convincing proof that Vincent doesn't live there. Nor do sightings of Vincent on the train conclusively establish that Vincent was living outside Eastchester and commuting to school. Finally, Vincent's tardinesses in arriving at school could be attributed to any number of different reasons. The District's contention that Vincent was late because he was commuting from the Bronx is nothing more than speculation.

Under these facts, I find that petitioner has rebutted the presumption that Vincent resides in the Bronx with his mother.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent permit Vincent Barron to continue in attendance in the Eastchester Union Free School District without the payment of tuition.

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