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Decision No. 12,581

Appeal of SUSAN AQUILA, on behalf of CISCO MINTHORN, from action of the Board of Education of the Cheektowaga-Sloan Union Free School District regarding residency.

Decision No. 12,581

(September 13, 1991)

Michael A. Connors. Esq., attorney for respondent

SOBOL, Commissioner. – Petitioner appeals, on behalf of her son, from respondent's determination that her son is not a resident of the Cheektowaga-Sloan Union Free School District and from its refusal to admit him to the schools of that district on a tuition-free basis. The appeal must be dismissed.

Petitioner resides in the City School District of the City of Buffalo. Her son has lived with his grandparents in the Cheektowaga-Sloan Union Free School District for the last six years where he has attended school since 1985. In October, 1990, school officials determined that petitioner's son was not a resident of the Cheektowaga-Sloan school district, but, instead, was a resident of the Buffalo City School District where his mother lives. Petitioner appeals that determination.

Education Law "3202(1) provides that "[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." Generally, a student's residence is presumed to be that of his or her parents (Matter of Staulcup, 20 Ed Dept Rep 11; Matter of Schwartz, 12 id. 187), and a determination by a board of education that a child is not a resident of its school district will not be set aside unless it is arbitrary, capricious or unreasonable (Matter of Takeall, 23 Ed Dept Rep 475; Matter of Hill and Joyce, 23 id. 338; Matter of Buglione, 14 id. 220). However, the presumption that a child's residence is that of his parents may be rebutted (Matter of Takeall, supra; Matter of Hill and Joyce, supra). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination of whether the parent has given up custody and control of the child. Where the parent continues to exercise custody and control of the child and continues to support him, the presumption is not rebutted, and the child's residence remains with his parent (See, Matter of Delgado, 24 Ed Dept Rep 279, Matter of Takeall, supra; Matter of Hill and Joyce, supra; Matter of Shelmidine, 22 id. 206).

Petitioner indicates that, although her son lives with his grandparents, she continues to provide financial support for him and to exercise control over him along with the grandparents. Petitioner specifically alleges that she has not surrendered parental control to her parents. In view of these statements, I find that for purposes of Education Law "3202(1), petitioner's son continues to reside with his mother.

Petitioner also alleges in a conclusory fashion that respondent has discriminated against her son because he is a Native American. However, no facts are alleged in support of her claims.

Therefore, upon my review of the record, I find respondent's determination reasonable, and find no basis to set aside its determination that petitioner's son is not a resident of the Cheektowaga-Sloan Union Free School District.