SOBOL, Commissioner.--Petitioner, on behalf of his nephew, appeals respondent's refusal to allow his nephew to attend respondent's schools tuition free because he is not a resident of the district. On February 12, 1993, I issued an interim order directing respondent to allow petitioner's nephew to enroll in its schools pending a final decision on the merits. The appeal must now be sustained.

Petitioner's nephew is a sixteen-year old ninth grade special education student who had been attending school in the Bronx while living there with his parents. In September 1992, the student's parents instituted a PINS petition to resolve certain problems with their son. To avoid a residential placement in the PINS proceeding, the boy's parents, in conjunction with a representative of the Bronx County Department of Probation, decided that the student should live with petitioner in Yonkers. Statements from the parents that they were giving petitioner the custody and care of the student, as well as petitioner's own statement that he accepted the responsibility of custody and care of the student, were submitted to respondent, with a request that the student be admitted to respondent's schools as a resident.

By letter dated October 21, 1992, respondent denied admission to the student after determining that his residence was presumed to be that of his parents; that the student's physical presence in Yonkers, alone, was insufficient to establish residence for purposes of attending respondent's schools; and that the statements of the student's parents and petitioner demonstrated that there had not been a total and permanent transfer of custody and control to petitioner.

On November 6, 1992, the student's mother and petitioner provided respondent with affidavits alleging that the parents had surrendered "care, custody and control" of the student on a permanent basis to petitioner and requested reconsideration of respondent's determination. By letter dated November 25, 1992, respondent's superintendent declined to review the October 21, 1992 determination and indicated that the parents were informed in the October 21 letter that the determination may be appealed to the Commissioner of Education under Education Law "310. This appeal followed.

In general, a student's residence is presumed to be that of his or her parents (Catlin v. Sobol, 155 AD2d 24, 553 NYS2d 501, rev'd on other grnds., 77 NY2d 552, 569 NYS2d 353). However, this presumption can be rebutted by examining the totality of circumstances (Appeal of Ambris, 31 Ed Dept Rep 41). In particular, the presumption is rebutted when it is established that the child's parents have surrendered custody and control and that such control is being exercised by some other person with whom the child lives (seeCatlin v. Sobol, supra). Although a court order awarding legal guardianship may be offered to establish a transfer of parental custody and control, it is unnecessary to establish a residence apart from one's parent, where the child's actual and only residence is with the person with whom the child lives (Catlin v. Sobol, supra; Appeal of Pryor, 29 Ed Dept Rep 505; Appeal of Takeall, 23 id. 475; Appeal of Tiger and Talasko, 16 id. 178).

The affidavits submitted to respondent on November 6, 1992 state that the parents have surrendered permanent "care, custody and control" of their son to petitioner. Respondent has submitted nothing to contest those affidavits. Additionally, it is undisputed that the student lives with petitioner, who resides in respondent's district. Accordingly, I conclude that petitioner's nephew resides within respondent's district, and is entitled to attend the Yonkers City Schools tuition free.

I have reviewed respondent's procedural contentions and find them without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent Board of Education of the City School District of the City of Yonkers admit petitioner's nephew to the schools of the district without payment of tuition.

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