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Decision No. 13,220

Appeal of WANDA CRESON, on behalf of her children, CHRISTOPHER AND COREY COLLINS, from action of the Board of Education of the Fonda-Fultonville Central School District regarding admission to school.

Decision No. 13,220

(July 14, 1994)

Leonhardt & Kruger, P.C., attorney for respondent, Robert J. Kruger, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her children, Christopher and Corey, are not residents of the Fonda-Fultonville Central School District. The appeal must be dismissed.

While the petition in this matter is unclear, at some unspecified time, it appears that respondent notified petitioner that her children were not residents of the Fonda-Fultonville district and could no longer attend its schools without payment of tuition. Respondent has agreed, however, to permit petitioner's children to continue to attend its schools pending the outcome of this appeal.

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 those students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446).

Respondent alleges and petitioner concedes that she does not reside in the Fonda-Fultonville district. However, petitioner contends that her children reside with their paternal grandmother within the district. Petitioner maintains that this living situation is necessary because both she and her husband work and are away from home for most of the day.

In general, a student's residence is presumed to be that of his or her parents (Catlin v. Sobol, 155 AD2d 24, rev'd on other grnds, 77 NY2d 552). 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; Matter of Takeall, 23 id. 475; Matter of Tiger and Talasko, 16 id. 178).

In petitioner's papers submitted in this appeal, petitioner states that she has not relinquished custody of her children and that she maintains the right to make all decisions regarding their health, education and welfare. In addition, she provides support in connection with food, clothing, shelter, medical insurance and all other necessities. Petitioner also states that the children stay with their grandmother during the school year and reside with petitioner on holidays and during school vacations. Petitioner further states that her children will live with their grandmother only until they complete school and are free to return home at any time.

Based on the foregoing, I conclude that petitioner has failed to rebut the presumption that her children reside with her. Because petitioner does not reside in respondent's district, respondent was not arbitrary or capricious in determining that petitioner's children may not attend its schools without paying tuition.

I have reviewed petitioner's remaining contentions and find them without merit.