Decision No. 12,938

(June 3, 1993)

Douglas E. Libby, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that his son, Jean Steve St. Fort Colin, is not a resident of the Sewanhaka Central High School District ("the district"). The appeal must be sustained.

In September 1990, petitioner enrolled his son at the district's Elmont Memorial High School, stating that Jean Steve resided with him at 78 Queens Avenue, Elmont, within the district. Jean Steve had previously resided outside the district with his mother at 115-51 Lefferts Boulevard in the borough of Queens, New York.

According to respondent, a teacher employed by the district observed petitioner's son travelling to school from New York City at some point during the 1992-93 school year. Consequently, respondent retained a private security firm to determine whether Jean Steve was a resident of the district. On September 24, October 6, 8 and 13, 1992, the private firm monitored simultaneously 78 Queens Avenue, Elmont and 115-51 Lefferts Boulevard, Queens, between the hours of 6:00 a.m. and 8:30 a.m. Although he attended school on those days, petitioner's son was not observed leaving for school from either address. For this reason, respondent determined that petitioner's son was not a resident of the district. The district's Director of Pupil Personnel Services advised petitioner of respondent's determination by letter dated October 28, 1992.

On November 17, 1992, a hearing was held pursuant to '100.2(y) of the Regulations of the Commissioner of Education (8 NYCRR 100.2[y]). At the hearing, petitioner presented documentary evidence supporting his assertion of residency at the Elmont address, including the deed for 78 Queens Avenue and an appraisal report for that property. Respondent submitted two reports describing the surveillances at 78 Queens Avenue and 115-51 Lefferts Boulevard. One report states that petitioner's son was not observed leaving either address on any of the four dates on which the surveillance occurred. The second report, dated November 16, 1992, states that Jean Steve was observed leaving for school from 78 Queens Avenue, Elmont, at 7:25 a.m. on November 13, 1992.

In a decision dated November 30, 1992, the hearing officer concluded that petitioner's son was not a resident of the district. Petitioner commenced this appeal on December 23, 1992. He requested an interim order directing respondent to maintain his son in its schools pending a decision on the merits. I granted interim relief on January 11, 1993.

The hearing officer conceded that petitioner's evidence supports his contention that he resides at 78 Queens Avenue, Elmont. Because Jean Steve had not been observed leaving that address on four out of five occasions, however, the hearing officer concluded,

I find the hearing officer's conclusion arbitrary and contrary to law.

The hearing officer improperly substituted "logic" for applicable provisions of law. A child's residence is presumed to be that of the parents or legal guardians (Appeal of Gwendolyn B., 32 Ed Dept Rep 151, 152; Appeal of Colas, 32 Ed Dept Rep 128, 131). Because the burden of proof regarding residence lies with the party alleging a change (Appeal of Gwendolyn B., supra; Appeal of Bonfante-Ceruti, 31 Ed Dept Rep 38, 40), the district was required to rebut that presumption. I find that respondent has not satisfied its burden and has not rebutted the presumption that petitioner's son resides with him.

The district's failure to observe petitioner's son coming to school from 78 Queens Avenue, standing alone, would not establish that he was coming to school from a different address. Here, in any event, Jean Steve was observed coming to school from 78 Queens Avenue. Even if respondent had established that Jean Steve spent time outside the district, moreover, that would not overcome the presumption that he resides with petitioner unless respondent also established that petitioner had relinquished custody and control of his son (Catlin v Sobol, 77 NY2d 552; Appeal of Colas, 32 Ed Dept Rep 128, 131). There is no such evidence in the record before me.

THE APPEAL IS SUSTAINED, and

IT IS ORDERED that the determination of the hearing officer, dated November 30, 1992, is hereby vacated, and

IT IS FURTHER ORDERED that, because respondent has failed to rebut the presumption that Jean Steve St. Fort Colin resides within the district, it must continue to admit him to the schools of the district on a tuition-free basis.

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