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Decision No. 13,386

Appeal of NORMA MATTHEWS, on behalf of her son, TIMOTHY, from action of the Board of Education of the Greene Central School District regarding residency.

Decision No. 13,386

(March 27, 1995)

Hogan & Sarzynski, Esqs., attorneys for respondent, John P. Lynch, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's determination that her son, Timothy, is not a resident of the Greene Central School District and is, therefore, not entitled to attend its schools tuition free. The appeal must be dismissed.

Timothy, a sixteen year old student, has attended school in respondent school district for three years. On or about August 1, 1994, petitioner and her children moved to Marysville, Pennsylvania. On or about September 16, 1994, Timothy moved back into respondent's district. In a residency questionnaire submitted by Timothy, he indicates that he lives with a Mrs. Dillenbeck at RD2, Greene, New York. He lists his father's address as unknown. Timothy also states that petitioner provides him with financial support, social security payments through her social security number and health insurance. Timothy further states in his residency questionnaire that he is living with Mrs. Dillenbeck so that he can finish school in Greene. On October 18, 1994, respondent decided that Timothy was not a resident of the district and denied Timothy permission to attend its schools tuition free. This appeal followed.

Petitioner maintains that Timothy is entitled to attend school in the Greene Central School District because he is staying with Mrs. Dillenbeck, who lives within the district. Education Law '3202(1) provides, 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.

The purpose of this 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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 77 NY2d 552; Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). However, this presumption may be rebutted (Catlin v. Sobol, supra; Appeal of Brutcher, supra; Appeal of McMullan, 29 Ed Dept Rep 310). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination that there has been a total, and presumably permanent, transfer of custody and control to someone residing within the district (Appeal of Brutcher, supra; Appeal of Garretson, 31 Ed Dept Rep 542; Matter of Van-Curran and Knop, 18 id. 523). 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 is deemed to remain with the parent (Appeal of Brutcher, supra; Appeal of Aquila, 31 Ed Dept Rep 93; Matter of Delgado, 24 id. 279). Moreover, where the sole reason the child is residing with someone other than the parent is to take advantage of the schools of the district, the child has not established residence (Appeal of Brutcher, supra; Appeal of Ritter, 31 Ed Dept Rep 24; Appeal of McMullan, supra).

The weight of the evidence supports respondent's determination that Timothy is no longer a resident of the district. The record shows no evidence of a transfer of custody to Mrs. Dillenbeck. Instead, the record reflects Timothy's mother's continued financial and other involvement in his upbringing. Moreover, Timothy states that his reason for living with Mrs. Dillenbeck is only to attend school in respondent school district. Because petitioner retains custody and control over Timothy and because he wishes to be considered a resident of respondent school district for the sole purpose of attending school there, respondent's determination that he is not a resident is reasonable and will not be set aside (Appeal of Brutcher, supra; Appeal of Delgado, supra; Appeal of Ritter, supra).