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Decision No. 13,662

Appeal of SHIRLEY ANN WEST and WALTER GARY WEST, on behalf of SHIRLEY ANN KOELLE, from action of the Board of Education of the Oxford Academy and Central School District regarding residency.

Decision No. 13,662

(August 26, 1996)

Hogan & Sarzynski, LLP, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Oxford Academy and Central School District ("respondent") that their granddaughter is not a resident of the district. The appeal must be dismissed.

Petitioners are residents of respondent's district and the maternal grandparents of Shirley Ann Koelle. Petitioners state that Shirley moved in with them on or about March 31, 1996. Prior to that date, she resided with her parents in East Haven, Connecticut. Petitioners stated that the reasons for the move were the death of her paternal grandparents and the alleged high crime and illegal drug traffic in the city and schools of the area. On April 2, 1996, petitioners made a request for Shirley's admission to respondent's district. Respondent denied the student's admission by telephone on April 9, 1996 and by letter dated April 12, 1996. This appeal ensued.

Petitioners seek their granddaughter's admission to respondent's school. Respondent contends that Shirley is attempting to enroll in its school solely to take advantage of the district's educational program. It seeks dismissal of the petition.

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 and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 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 Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). 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 Garretson, 31 Ed Dept Rep 542; Matter of Van-Curren and Knop, 18 id. 523). However, when 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, 33 Ed Dept Rep 56; Appeal of Ritter, 31 id. 24; Appeal of Pinto, 30 id. 374; Appeal of McMullan, 29 id. 310).

The record in this case indicates that the sole reason Shirley moved in with petitioners was to attend school in respondent's district. Furthermore, respondent argues that there has not been a total transfer of custody and control to the grandparents since Shirley's parents claim her as a dependent on their federal income tax returns for 1995 and Shirley is still covered under her father's health insurance. Although petitioners argue that they are attempting to add Shirley to their health insurance coverage and provide her with shelter, food and clothing, the record does not support a finding that a total transfer of custody and control to petitioners has occurred. Therefore, I find no basis to overturn respondent's determination that Shirley does not reside in the district.