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Decision No. 13,338

Appeal of FRANKLIN SENIA and GRACE SENIA, on behalf of TARA SENIA, from action of the Board of Education of the Sweet Home Central School District regarding admission to school.

Decision No. 13,338

(January 24, 1995)

Gross, Shuman, Brizdle & Gilfillan, P.C., attorneys for respondent, Dawn A. Foshee, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the determination of the Board of Education of the Sweet Home Central School District ("respondent") that Tara Senia is not a resident and is therefore ineligible to attend district schools. The appeal must be dismissed.

Petitioners Franklin and Grace Senia are Tara's father and grandmother, respectively. In 1982, Tara and her father resided at her grandmother's home, within the Sweet Home district. At the appropriate age, Tara began attending respondent's schools. On some unspecified date, petitioner Franklin remarried and moved outside the Sweet Home district. In or about January 1994, petitioners requested that Tara be allowed to continue to attend respondent's schools. By letter dated May 11, 1994, respondent denied the request, but advised petitioner Franklin that Tara would be allowed to complete the 1993-94 school year in its schools. This appeal followed.

The right of admission to the schools of a public school district on a tuition-free basis is accorded only to residents of the district, pursuant to Education Law '3202(1), which 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.

As noted in Matter of Buglione, 14 Ed Dept Rep 220, this statute limits the obligation of school districts to provide tuition-free education, with certain exceptions that are not relevant in this instance, to students whose parents or legal guardians reside within the district.

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 Buglione, supra). A student's residence is presumed to be that of his or her parents (Catlin v. Sobol, 77 NY2d 552; Matter of Schwartz, 12 Ed Dept Rep 187). This presumption is rebuttable, however, with proof that the parent has relinquished parental control over the child (Catlin v. Sobol, supra). For purposes of school district residence, the child's residence then becomes that of the person assuming parental control (Matter of Morello, 9 Ed Dept Rep 130).

In this instance, petitioners have failed to rebut the presumption that Tara resides with her father outside the district. Information supplied by petitioners shows that Tara stays with her grandmother three days a week and with her father two days a week. Tara spends her weekends with either her father or mother. The record further shows that petitioner Franklin continues to support Tara. Nor is there a court order or agreement transferring custody of Tara from Franklin.

Based on my examination of the totality of circumstances, I conclude that petitioners have failed to rebut the presumption that Tara resides with her father. Because petitioner Franklin does not reside in respondent's district, respondent was not arbitrary or capricious in determining that Tara is not a resident and may not attend its schools.