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Decision No. 13,440

Appeal of ANDREA SCARPINO-PRINCE from action of the Board of Education of the Keene Central School District regarding admission to school.

Decision No. 13,440

(June 29, 1995)

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

SOBOL, Commissioner.--Petitioner appeals respondent's determination that she is not a resident of the Keene Central School District and its refusal to admit her to its schools on a tuition-free basis. The appeal must be dismissed.

Petitioner is seventeen years old. On or about October 11, 1994, petitioner moved from San Diego, California to New York. She is currently living with family friends in respondent's district. By letter dated November 3, 1994, respondent denied petitioner's request to attend its schools tuition-free. This appeal ensued.

Education Law '3202(1) provides that "[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." Generally, a student's residence is presumed to be that of his or her parents (Matter of Staulcup, 20 Ed Dept Rep 11; Matter of Schwartz, 12 id. 187), and 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 Takeall, 23 Ed Dept Rep 475; Matter of Hill and Joyce, 23 id. 338; Matter of Buglione, 14 id. 220). However, the presumption that a child's residence is that of his parents may be rebutted (Matter of Takeall, supra; Matter of Hill and Joyce, supra). To determine whether the presumption has been rebutted, certain factors are relevant, including a determination of whether the parent has given up custody and control of the child. Where the parent continues to exercise custody and control of the child and continues to support the child, the presumption is not rebutted, and the child's residence remains with the parent (See, Matter of Delgado, 24 Ed Dept Rep 279; Matter of Takeall, supra; Matter of Hill and Joyce, supra; Matter of Shelmidine, 22 id. 206).

In the instant matter, the record reveals that petitioner is not a resident of the district. Petitioner's father pays approximately $9,000 per year for petitioner's support and provides her with health insurance coverage. Accordingly, it is clear that petitioner is still supported by her father and not by the individuals with whom she currently lives. Moreover, the record indicates that petitioner is only staying in the district until she graduates from high school. In view of the foregoing, I find that for purposes of Education Law '3202(1), petitioner does not reside in respondent's district and its determination on this issue is reasonable.