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Decision No. 13,582

Appeal of DARRYL V. WATSON, on behalf of DAVID M. and CHERISE N. DORSEY, from action of the Baldwin Union Free School District regarding residency.

Decision No. 13,582

(March 22, 1996)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, attorneys for respondent, Lawrence W. Reich, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Baldwin Union Free School District ("respondent") to exclude his grandchildren from district schools on the basis of residency. The appeal must be dismissed.

Petitioner alleges that his grandchildren, David M. and Cherise N. Dorsey, have lived with him for the past seven years and that his daughter, the children's mother, also lived with him until last year. Respondent contends that petitioners grandchildren are nonresidents because their mother, now living outside of the district, has not surrendered full custody and control of the children to him. Furthermore, respondent alleges that surveillance conducted on several dates in September 1995 reveals that the children are actually living with their mother outside of respondent school district. By letter dated October 5, 1995, respondent notified the children's mother that they would be excluded from district schools as of that date because they were not district residents. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on October 31, 1995.

Education Law '3202(1) provides in pertinent part:

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.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education only to district residents (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Warburton, 35 id. 74). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Reilly, 35 Ed Dept Rep ___, Decision No. 13,550 dated February 5, 1996; Appeal of Allen, supra). That presumption can be rebutted where it is shown that the parents have relinquished total custody and control of the child in question (Appeal of Gorrasi, 35 Ed Dept Rep 68; Appeal of Brutcher, 33 id. 56). In this case, petitioner admits in his petition that the children's mother contributes toward their support, food, shelter, and clothing, that she and petitioner exercise control over the children's activities, and that she has not surrendered parental control to petitioner. Therefore, the presumption that the children reside with their mother, who lives outside of respondent school district, has not been rebutted. Accordingly, respondent's determination will not be set aside.

THE APPEAL IS DISMISSED.

END OF FILE