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Decision No. 12,729

Appeal of PAUL GARRETSON, on behalf of his daughter Marcie, from action of the Board of Education of the Sweet Home Central School District regarding admission to school.

Decision No. 12,729

(June 26, 1992)

Gross, Shuman, Brizdle & Gilfillan, P.C., attorneys for respondent, Robert J. Feldman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to allow his daughter to attend the district high school without the payment of tuition. The appeal must be dismissed.

Petitioner and his former wife were recently divorced. The record is unclear, but petitioner apparently was granted custody of his daughter Marcie, who is a senior at the Sweet Home High School. At the beginning of the 1991-92 school year, petitioner requested that his daughter be permitted to finish her last year of school at the Sweet Home High School even though petitioner no longer resides in the Sweet Home district. By letter dated November 15, 1991, respondent's attendance teacher rejected petitioner's request. Respondent board affirmed on November 27, 1991. This appeal ensued.

Petitioner maintains that his daughter is entitled to attend school in the Sweet Home district because she is staying with family friends, who reside within the district. Education Law "3202(1) provides in 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 the statute is to limit the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

A child's residence is presumed to be that of her parents or legal guardian (Matter of Shelmidine, 22 Ed Dept Rep 206; Matter of Delgado, 24 id. 279). To establish the legal residence of a child whose natural parent, or parents, live outside the district, it must be demonstrated that there has been a total, and presumably permanent, transfer of custody, and control to someone residing within the district. (Matter of Van-Curran and Knop, 18 Ed Dept Rep 523; Matter of Catlin v. Sobol, et al., 77 NY2d 552, 569 NYS2d 353). While it is not necessary to establish parental custody and control through a formal guardianship proceeding in Surrogate's Court (Appeal of Tunstall, 27 id. 144), it is necessary to demonstrate that a particular location is a child's permanent residence, and that the individuals exercising control have full authority and responsibility with respect to the child's support and custody (Appeal of Pernell, 30 Ed Dept Rep 380).

These factors have not been demonstrated on the record before me. Statements supplied by petitioner, his daughter and a member of the family with which petitioner's daughter is staying, do not support petitioner's contention that his daughter is entitled to attend Sweet Home schools. Rather, those statements indicate that Marcie merely stays with the family in the Sweet Home district during the week, when petitioner is away on business. The record indicates that Marcie spends weekends with petitioner or her mother. The record also shows that petitioner has maintained custody and control over his daughter and is still financially responsible for her. Accordingly, I find that petitioner's daughter is not a resident of the Sweet Home Central School District.