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Decision No. 13,459

Appeal of ADDIE MAE MULLEN, on behalf of TORREY OVERSTREET, from action of the Board of Education of the Sweet Home Central School District regarding student residency.

Decision No. 13,459

(August 10, 1995)

Gross, Shuman, Brizdle & Gilfillan, P.C., attorneys for respondent, Robert J. Feldman, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that her grandson is not a resident of the district. The appeal must be dismissed.

Petitioner is the grandmother of student Torrey Overstreet, on whose behalf she brings this proceeding, and is also a resident of the Sweet Home Central School District ("respondent"). On October 13, 1994, Torrey's mother, Rochelle Mullen-McNeal, executed an affidavit stating that she was establishing a new residence and that Torrey would be living with his grandparents temporarily. On that same date, Torrey's grandfather executed a custodial affidavit which indicated that Torrey would be living with him temporarily until Torrey's mother relocated. Petitioner represented that Torrey would return to his mother's residence after January 1, 1995. Based on those representations, respondent agreed by letter dated October 19, 1994 to allow Torrey to attend school in the district.

It appears from the record, however, that Torrey did not move back to his mother's home as anticipated. By letter dated January 30, 1995, respondent notified petitioner of its determination that Torrey was not a resident of the district. This finding was based upon information Torrey's mother provided to the district, indicating that she did not intend to change Torrey's residence permanently, was financially responsible for him and provided him with health insurance. Respondent further indicated that Torrey would be excluded from its schools effective February 16, 1995. This appeal ensued, and petitioner requested interim relief pending a determination on the merits. Subsequently, respondent agreed that Torrey could remain in school pending a final determination by the Commissioner of Education. It appears that Torrey completed the 1994-95 school year.

Petitioner seeks to have Torrey remain in school in respondent's district and alleges that since he is a special education student, he should not miss time from school. Respondent contends that petitioner's grandson is not a resident of the district, and that the documents submitted by petitioner's family indicate that no permanent transfer of custody and control to petitioner has occurred that would allow Torrey to remain in its schools.

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 (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 (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 support the student, the presumption is not rebutted and the student's residence remains with the parent (Appeal of Brutcher, supra; Appeal of Ritter, 31 Ed Dept Rep 24; Matter of Delgado, 24 id. 279).

Although petitioner states in her petition that her residence in the district is her grandson's only residence and that she is supporting Torrey, she also states that Torrey's parent has not surrendered parental control to petitioner. In addition, affidavits filed with respondent indicate that the living arrangement is temporary and Torrey's mother remains financially responsible for him. While I am sympathetic to petitioner's statements that she and her husband can provide a more supportive environment for Torrey, there is no legal basis to impose the cost of educating Torrey upon respondent. Furthermore, the circumstances under which respondent admitted Torrey were meant to be temporary, which further indicates that no permanent transfer of custody and control occurred. Since Torrey's mother still exercises parental control, I cannot find that he has the right to attend respondent's schools on a tuition free basis. Accordingly, respondent's determination that Torrey is not a resident of the district is reasonable and will not be set aside (Appeal of Brutcher, supra; Matter of Delgado, supra; Appeal of Ritter, supra).