Decision No. 12,643

(January 30, 1992)

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that her son is not a resident of the Niskayuna Central School District and is, therefore, not entitled to continue to attend its schools without the payment of tuition. The appeal must be sustained.

Petitioner alleges that her son has resided continuously in respondent's school district since he began school, and that she has lived at the same address in the district for the past twenty years. Petitioner also states that she and her husband are divorced, that she has legal custody of her son, Michael, and that Michael's primary residence is with her. Petitioner further states that Michael's father has liberal visitation rights and that Michael, who is 15 years old, is free to stay with either parent. It is undisputed that Michael's father owns two homes, one in respondent's district and the other in a neighboring district.

Based upon reports from other students, respondent concluded that Michael resided primarily in his father's home in the neighboring district. On October 12, 1991, respondent's attorney wrote to Michael's father and informed him that unless Michael and the parent with whom he resides, submitted a sworn statement attesting to their residency in respondent's district, his son would not be permitted to continue to attend respondent's schools tuition-free. In response to this letter, petitioner submitted a sworn statement in letter form explaining that although she had legal custody, Michael chose to live part of the time with his father. Petitioner asserts that the time spent with his father is at the home in respondent's school district. Finding petitioner's sworn "letter" unsatisfactory, respondent's attorney prepared an affidavit for petitioner's signature, advising her that if she did not sign and return the affidavit by November 6, 1991, her son would be excluded from school. That affidavit included a paragraph that her son occasionally stays at his father's residence in the neighboring school district, and a provision accepting liability for tuition for those periods of time that her son "is not residing" with petitioner. Petitioner refused to sign the affidavit. Based upon her refusal to sign the affidavit, respondent concluded that her son was not a resident of the district, and informed her in writing on December 13, 1991 that her son would be removed from the attendance rolls on January 30, 1991.

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). 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; Matter of Manning, 24 Ed Dept Rep 33). Where the child's parents are divorced and a court awards custody to one parent, as in this case, the child's residence is presumed to be with the custodial parent. The presumption that a child resides with his custodial parent is rebuttable (see, Matter of Forde, 29 Ed Dept Rep 359). Respondent, however, has produced no competent evidence to rebut that presumption. Where, as here, the child's time is divided between two households, the determination of the child's residence rests ultimately with the family (Matter of Forde, 29 Ed Dept Rep 359). Both petitioner and Michael's father maintain that Michael's residence is with petitioner. Without evidence to the contrary, there is no basis to conclude otherwise.

Respondent alleges that Michael's residence has changed and that he no longer resides with petitioner. Respondent, therefore, bears the burden of establishing that change (Appeal of Bonafante-Ceruti, 31 Ed Dept Rep 38, 40; Matter of Tunstall, 27 id. 144, 146). Based upon my review of the record, respondent has failed to present any evidence to establish that petitioner's son is no longer a legal resident of the school district. Respondent's allegation that students have indicated that Michael resides in a neighboring district does not constitute competent evidence and, therefore, will not be considered. Further, petitioner's refusal to sign a statement that requires her to accept liability for his tuition when he "is not residing" with her, while stating that her son occasionally "resides" with his father is certainly understandable and, in any case, is not dispositive on the question of her son's residence. In sum, respondent has failed to meet its burden to establish that Michael does not reside with petitioner. Accordingly, I find that Michael's residence for purposes of Education Law '3202(1) is with petitioner.

THE APPEAL IS SUSTAINED.

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