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Decision No. 13,356

Appeal of ALISON SANCHEZ, on behalf of REBECCA FELDMAN, from action of the Board of Education of the Harborfields Central School District regarding admission to school.

Decision No. 13,356

(February 9, 1995)

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

SOBOL, Commissioner.--Petitioner appeals respondent's determination that Rebecca Feldman is not a resident of the Harborfields Central School District and is, therefore, ineligible to attend its schools tuition-free. The appeal must be dismissed.

Petitioner is a resident of respondent's district and Rebecca Feldman is a friend of petitioner's daughter. Rebecca's parents reside in Arkansas. On September 6, 1994, petitioner requested Rebecca's admission to respondent's schools as a resident of the district. After reviewing affidavits submitted by petitioner and Rebecca's parents, respondent determined that Rebecca was not a resident of the Harborfields district and was ineligible to attend its schools without the payment of tuition. Petitioner commenced this appeal on October 5, 1994. Her request for interim relief was denied on October 13, 1994.

The appeal must now be dismissed. 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 reads 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.

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

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). 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). The presumption that a child's residence is that of the parents is, however, rebuttable and can be overcome by demonstrating that the parent has relinquished parental control (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, petitioner has failed to rebut the presumption that the child's residence is with her mother. Affidavits supplied by petitioner and Rebecca's parents indicate that Rebecca's parents financially support her while she is staying with petitioner. The affidavit from the parents also states that Rebecca is pursuing an education in dance and that she came to New York to continue that endeavor, which she was unable to do in Arkansas. Based on those affidavits, respondent correctly determined that the parents have not relinquished parental control of Rebecca and she is not a resident of the Harborfields district.