Decision No. 12,644

(January 30, 1992)

Jaspan, Ginsberg, Ehrlich, Schlesinger, Silverman & Hoffman, Esqs., attorneys for respondent, Florence T. Frazer, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that his son is not a resident of the Malverne Union Free School District and is, therefore, not entitled to continue to attend its schools tuition-free. Petitioner claims that he has resided in respondent's district for the past 35 years, and that his son has resided with him since he was born and has attended respondent's schools since he began school without incident, until this proceeding. The appeal must be sustained.

By letter dated December 4, 1990, respondent's superintendent informed petitioner that his son was not a resident of the district, and would no longer be permitted to attend respondent's schools without the payment of tuition. The letter advised that petitioner could request a superintendent's review of the determination and present evidence to support his claim that he is a resident of the district.

Upon petitioner's request, respondent's superintendent reviewed the determination, and concluded that petitioner's son was not a resident of respondent's school district. His conclusion was based upon three factors. First, two individuals who allegedly reside at the same address as petitioner and his son did not identify petitioner and his son as household members on a school registration form when they registered their children. Second, petitioner's son indicated to a teacher that he could not attend morning detention because he had to commute from a neighboring community. Third, petitioner refused to allow respondent to conduct a home visit. Petitioner was notified of the superintendent's decision by letter dated December 20, 1990. He was advised that his son would be excluded from attendance beginning January 4, 1991, and that he could appeal that determination to the Commissioner of Education.

This appeal was commenced on February 14, 1991. On March 20, 1991, because it appeared that petitioner's son had been absent from school for over two and one-half months, I issued an interim order, suasponte, directing that petitioner's son be immediately admitted to respondent's schools. I now consider the merits of this appeal.

Petitioner claims that he has lived at the same address in the Malverne Union Free School District for the past 35 years, and that his son has resided with him since he began school. Petitioner has submitted documentary evidence consisting of, interalia, his 1990 tax return, current credit card and insurance bills, bank statements, and notarized statements which give his address in respondent's school district. Petitioner also states that, while he has a girlfriend in a neighboring community where he and his son stay occasionally on his days off, he continues to reside in respondent's district.

Respondent contends that because the appeal is not verified in accordance with 8 NYCRR '275.5, it must be dismissed. The original petition filed with this office was verified. The copy served upon the respondent should have been verified; however, in the absence of a showing that the failure to verify the copy resulted in prejudice to respondent, I will excuse the defect (Appeal of Palla, 30 Ed Dept Rep 242; Appeal of the Board of Education of the Saranac Central School District, 27 id. 199; and Appeal of Mason, 25 id. 283).

Respondent further contends that the petition fails to state a claim upon which relief can be granted. While the petition may not be organized in the most logical fashion, I am able to ascertain that petitioner's child was excluded from school for a period in excess of two months due to a residency determination by the respondent, and that petitioner seeks to have his child readmitted to respondent's schools. Accordingly, I find that the petition adequately states a claim upon which relief may be granted.

Respondent argues that petitioner no longer resides in the district, notwithstanding petitioner's evidence to the contrary. Respondent urges that I treat petitioner's evidence, in support of his contention that he resides in the district, as having little or no probative value, hypothesizing that people frequently use a friend's address to receive mail and to circumvent the residency requirement, although respondent does not specifically allege that petitioner has fabricated this evidence or is trying to circumvent the residency requirement. Further, respondent does not rebut petitioner's contention that he has resided in respondent's district for the past 35 years, or even make an affirmative allegation as to petitioner's current address. Respondent's allegation that some people fabricate evidence to circumvent residency requirements is not competent evidence that petitioner does not, in fact, reside where he claims to reside.

A person does not lose an existing domicile or residence until he or she acquires a new one. "[A] residence is not lost until another residence is established through both intent and action expressing such intent" (Matter of Tunstall, 27 Ed Dept Rep 144; Matter of Gladwin, et al. v. Power et al., 21 AD 2d 665, 249 NYS 2d 980, aff'd. 14 NY 2d 771, 250 NYS 2d 807; Matter of Buglione, 14 Ed Dept Rep 220). The party alleging the change has the burden of establishing that change (Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38, 40; Matter of Tunstall, 27 id. 144, 146). Unless the district shows a change in residence has occurred, a child remains entitled to attend the schools of the district in which he or she is enrolled (Matter of Tunstall, supra; Matter of Fenton, 15 Ed Dept Rep 100; Matter of Van Curran, 18 id. 523).

I find that petitioner did not change his place of residence. The failure by another resident of the property to list petitioner and his son on a district form as residents of the same household is not dispositive. Indeed, the photocopies of the forms filed with the answer indicate that the two other residents even failed to list each other. Respondent's contention that its director of admissions allegedly asked each of the residents if anyone else lived there is disputed by petitioner. Similarly, the statement made by petitioner's son that he could not attend morning detention because he had to commute from a neighboring community does not demonstrate that petitioner in fact changed his residence. To the contrary, it is entirely consistent with petitioner's admission that he and his son occasionally stay overnight with petitioner's girlfriend at her home outside the district. Nor does the fact that petitioner will not permit the school to conduct a home visit show that petitioner does not reside in the district. In sum, none of the evidence offered by the respondent supported its conclusion that petitioner no longer resides in the district, and that his son is not entitled to attend its schools.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent continue to admit petitioner's son to the public schools maintained by the Malverne Union Free School District.

END OF FILE

---