Decision No. 12,614

(December 16, 1991)

SOBOL, Commissioner.--Petitioners appeal from respondent's determination that petitioner Werher is not a resident of the Wappingers Central School District and its refusal to allow her to attend the schools of the district on a tuition-free basis. The appeal must be sustained.

Petitioner Werher ("Rebecca") is 16 years old and until June 1990, resided with her mother and step-father in respondent's school district. In June 1990, the family moved to the Arlington Central School District where Rebecca began attending school in September 1990. In February 1991, she resumed her attendance in respondent's district after moving in with petitioner Carlson who resides there. After determining that Rebecca was not a resident of the district, respondent agreed to admit her to school only after petitioner Carlson agreed to pay tuition. In September 1991, Rebecca left respondent's school district and now attends school in the Hyde Park Central School District. Because petitioners' liability for tuition remains at issue, the appeal is not moot.

Petitioners allege that Rebecca established residency in the Wappingers Central School District in February 1991, when she moved in with petitioner Carlson, and that, consequently, she should have been permitted to attend the public schools of the district on a tuition-free basis. Petitioner Carlson claims that she was committed indefinitely to providing support and supervision for Rebecca, as well as providing her with food, shelter, clothing and care. Petitioners assert that Rebecca's mother did not support or supervise her while she lived with petitioner Carlson.

Respondent contends that, because Rebecca is a minor, she is incapable of establishing residency separate and apart from her parent. Respondent also argues that because petitioners failed to establish that Rebecca's mother relinquished custody and control during the relevant time period, she continued to be a resident of the Arlington Central School District where her mother resides. Based on the foregoing, respondent contends that Rebecca was not entitled to attend school in its district on a tuition-free basis.

Education Law '3202(1) provides that "[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." Generally, a student's residence is presumed to be that of his or her parents (Matter of Warren, 25 Ed Dept Rep 403; Matter of Staulcup and Foncesca, 20 id. 11), however, that presumption is rebuttable (Appeal of Walsh, 26 id. 379). Respondent's assertion that Rebecca's minor status precludes her from establishing a residence apart from her parents is incorrect as a matter of law. Students beyond the compulsory school age, living separate and apart from their parents in a manner inconsistent with parental custody and control, who are not receiving any financial support from them and have no intent to return home, may establish their own residence as emancipated minors (see, Parker v Stage, 43 NY2d 128 [1977]; Roe v Doe, 29 NY2d 188 [1971]). By establishing the status of an emancipated minor, a pupil may rebut the presumption that his or her residence is with one's parents (Appeal of Deborah V., 29 Ed Dept Rep 176; Matter of Takeall, 23 id. 475). In this instance, however, although over the age of sixteen, Rebecca does not assert that she is emancipated, nor is there any support in the record to make such a finding.

In the alternative, where a student's parents relinquish custody and control of their child to a third party, the presumption that residency is with the parents is rebutted (Matter of Hill and Joyce, 23 Ed Dept Rep 338; Matter of Tiger and Talasko, 16 id. 178). Rebecca's parents are divorced and were awarded joint custody. Physical custody was awarded to the mother. Although Rebecca's father signed a statement transferring custody of his daughter to petitioner Carlson, the girl's mother refused to do so. Nevertheless, it appears from the record that petitioner Carlson did support, care for and supervise Rebecca while she lived with her. Moreover, although the law presumes that a child's residence is with the custodial parent, because Rebecca was over the age of sixteen and appears to have left her mother's custody and control, the fact that her mother did not consent to transfer custody and control to petitioner Carlson is not determinative of her residence (see, Appeal of Forde, 29 Ed Dept Rep 359). Although respondent submits an affirmation by its attorney indicating that Rebecca's mother wanted her daughter to return home, that she arranged her work schedule to accommodate her daughter's school day and that she and her husband continued to support Rebecca while she lived with petitioner Carlson, respondent submits no direct evidence to support his sworn statement. Because the record does not include any direct statement from Rebecca's mother to establish the allegations contained in the attorney's affirmation, I find his affirmation alone insufficient to establish the facts alleged. Further, it is significant that, except for the attorney's affirmation, respondent submits no evidence whatsoever to support its determination that Rebecca was not a resident of the district.

Section 100.2(y) of the Regulations of the Commissioner of Education provides, in pertinent part:

Section 100.2(y) further provides that the written notice must set forth the basis for the board's determination.

Pursuant to my authority under '276.5 of the regulations, I directed respondent to submit evidence that petitioners were afforded an opportunity to present information in accordance with the regulation set forth above. In addition, respondent was directed to submit a copy of its written determination. Although respondent submitted copies of several documents regarding events subsequent to the initiation of this appeal, respondent failed to provide any of the requested information. I must, therefore, conclude that respondent did not follow the provisions of '100.2(y) of the regulations. As a result, the record before me consists of only unsupported allegations and the affirmation by respondent's attorney. There is nothing in the record indicating the basis upon which respondent rendered its initial determination that Rebecca was not a resident of its school district.

The provisions of '100.2(y) were enacted, in part, to provide written notice to students or parents, as appropriate, of the right to submit additional information prior to a final residency determination and to require a board of education to develop a record upon which its determination is based. In reviewing a board's decision, the Commissioner of Education must determine whether the decision was supported by the evidence before the board of education. Respondent has failed to comply with the regulatory requirements and, consequently, the record before me is insufficient to determine whether respondent acted reasonably in concluding that Rebecca was not a resident of its district. This case underscores the importance of following the procedures set forth in regulation before a final determination on a student's residency is made. Because respondent has failed to present sufficient competent evidence in support of its determination, the appeal must be sustained.

THE APPEAL IS SUSTAINED.

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