MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Mamaroneck Union Free School District ("respondent") that their son, Charles, is not a resident of the district. The appeal must be dismissed.

On October 1, 1999, the lease on petitioners’ house in the Mamaroneck school district expired. Mr. and Mrs. Degorge subsequently moved to another area temporarily, pending their purchase of a house in New Rochelle. During this period, Charles stayed with friends in Mamaroneck. While Charles told school personnel that his family had moved to New Rochelle, his mother informed school officials that the family was living at a Mamaroneck address. However, upon investigation, school staff determined that the address provided by Mrs. Degorge was a commercial building.

On November 5, 1999 Mrs. Degorge met with Assistant Superintendent Sarah Tate to discuss her family’s residence. Ms. Tate’s November 8 letter to petitioners summarizing their discussion states that petitioner acknowledged that she and her husband had moved out of the district and that her son was staying with friends so that he could continue attending school in Mamaroneck. Ms. Tate explained that Charles was no longer a resident of the district and could no longer attend its school without paying tuition. She noted that Mrs. Degorge had agreed to pay the first semester tuition by November 12. When the district did not receive such tuition payment by November 12, 1999, Ms. Tate wrote Mrs. Degorge a second letter advising her that Charles could not attend school in Mamaroneck after November 16. She also informed her of her right to appeal to the Commissioner.

On November 16, 1999, Superintendent Sherry King spoke with Mrs. Degorge by telephone. She reiterated that Charles was not a district resident and advised Mrs. Degorge that petitioners could either pay tuition for him to attend school in Mamaroneck or register him in the New Rochelle school district. This appeal ensued. Petitioners’ request for interim relief was denied on December 6, 1999.

Petitioners allege that respondent’s determination is arbitrary and argue that, in similar circumstances, their daughter was allowed to finish her senior year at Mamaroneck without paying tuition. They also contend that a move to a new school so late in Charles’ senior year would hamper his application and acceptance to college.

Respondent asserts that its determination is neither arbitrary nor capricious. It relies on petitioners’ admission that they no longer reside in the district. Respondent states that district policy permits a resident who completes grades 7-11 and the first semester of his or her senior year in the Mamaroneck school system, and who then becomes a nonresident, to finish his or her senior year without paying tuition. This policy, respondent notes, does not apply to Charles because he attended 7th grade and part of 10th grade outside the district and his parents moved before he completed the first semester of his senior year. Respondent states that if its policy was not correctly applied to petitioners’ daughter, the error occurred because school officials were led to believe that she lived in the district for the entire first semester of her senior year.

Education Law "3202(1) provides, in pertinent part:

This statute limits the obligation of school districts to provide tuition-free education to students whose parents or legal guardians reside within the district (Appeal of White, 39 Ed Dept Rep 103, Decision No. 14,186; Appeal of Brown, 38 id. 159, Decision No. 14,007; Appeal of Kehoe, 37 id. 14, Decision No. 13,792). A student's residence is presumed to be that of his or her parents or legal guardians (Appeal of White, supra; Appeal of Brown, supra; Appeal of Atallah, 36 Ed Dept Rep 78, Decision No. 13,663). 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 Brown, supra; Appeal of Mitchem and Gray, 37 Ed Dept Rep 231, Decision No. 13,849). Where a student lives apart from his or her parent or legal guardian and the parent continues to exercise custody and control of the child and to support the student, the presumption is not rebutted and the child's residence remains with the parent (Appeal of White, supra; Appeal of Peykar, 38 Ed Dept Rep 141, Decision No. 14,003; Appeal of Keenan, 36 id. 6, Decision No. 13,635).

Petitioners acknowledge that they do not reside in the district. There is no evidence that petitioners have transferred custody and control of Charles to any other person. Accordingly, the presumption that Charles resides with petitioners has not been rebutted. The fact that Charles is staying with friends in the district to attend school there does not make him a resident. Where, as in this case, the sole reason the student is residing with someone other than the parent is to take advantage of the schools of the district, the student has not established residence (Appeal of Keenan, supra; Appeal of West, 36 Ed Dept Rep 76, Decision No. 13,662). Furthermore, Charles does not meet the criteria articulated in respondent’s policy which permits seniors to attend the district’s schools tuition free under certain limited circumstances.

 

 

In view of the foregoing, there is no basis to reverse respondent’s determination as arbitrary and capricious.

THE APPEAL IS DISMISSED.

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