MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Scotia-Glenville Central School District ("respondent") that her daughter is not a resident of the district and, therefore, is not entitled to attend its schools tuition-free. The appeal must be dismissed.

In the fall of 1999, petitioner and her family moved from respondent"s district into a neighboring district. Respondent notified petitioner that her daughter, A.F., would be permitted to complete that semester at respondent"s schools. By letter dated November 16, 1999, petitioner wrote to respondent seeking permission for A.F., then a ninth grade student, to attend their schools, tuition free, until her graduation. Petitioner explained that she had not realized that her new home was located outside of respondent"s district, and that her daughter, a special education student, has difficulty adjusting to new surroundings. By letter dated December 2, 1999, respondent"s superintendent of schools advised petitioner that A.F. could attend respondent"s schools after the conclusion of that semester only on a paid tuition basis. In January 2000, petitioner withdrew A.F. from respondent"s schools and enrolled her in the public schools of the district in which they resided.

In August 2000, petitioner submitted to respondent a registration report and parent affidavit indicating that she was relinquishing custody of A.F. to her aunt, who resided within respondent"s district. In the affidavit, petitioner alleged that her daughter no longer resided with her "because we cannot get along together & (sic.) she wish"s (sic.) to reside with her aunt & (sic.) uncle and attend this school." A.F."s aunt also submitted a form declaring that she had assumed full responsibility for all matters relating to A.F."s educational and medical needs. On the form, however, A.F."s aunt also indicated that petitioner would be responsible for the expenses associated with A.F."s room and board, clothing and other necessities, including school supplies. Based on the representations made by petitioner and A.F."s aunt, respondent admitted A.F. into its schools for the 2000-2001 school year.

In October 2000, A.F."s aunt advised respondent that she had moved out of the district, and that A.F. no longer resided with her and was no longer under her custody and control. By letter dated October 18, 2000, the principal of A.F."s high school informed petitioner that because A.F. was no longer living with her aunt within the district, she would be permitted to attend respondent"s schools tuition-free only until the end of that semester.

On November 29, 2000, petitioner submitted a second registration report, together with another parent affidavit, indicating that she was relinquishing custody of A.F. to a family friend, who resides within respondent"s district. In the affidavit, petitioner alleged that her daughter no longer resided with her "because of family problems." Petitioner also avowed that A.F. "has a hard time adjusting to new things. So we"re trying to keep her in a school that she loves and would like to graduate from. Rather than see her drop out as she would rather due (sic.) than attend another school." The family friend also submitted a form declaring that A.F. was residing with her within the district, and that she was serving as A.F."s "legal guardian." On the form, however, the family friend also indicated that petitioner would claim A.F. as a dependent for income tax purposes and would be responsible for her medical treatment and the expenses associated with her room and board, clothing and other necessities, including school supplies. The family friend also indicated that A.F. was residing with her because A.F. "prefer"s (sic.) this school district." Based on the information submitted, respondent determined that petitioner had not fully relinquished custody of A.F., and therefore denied her application for A.F. to attend its schools tuition- free.

In early January 2001, respondent"s superintendent met with petitioner in order to give her an opportunity to provide evidence rebutting the district"s determination that A.F. was living with the family friend only for the purpose of having her attend the district"s schools tuition-free. Respondent"s superintendent asserts in his affidavit that petitioner provided no such evidence; rather, she reiterated her concern that A.F. would drop out of school if she could not remain in respondent"s schools.

By letter dated January 24, 2001, respondent"s superintendent notified petitioner of its determination, as follows: "The evidence submitted supports a finding that [A.F.] is residing in the District for the sole purpose of attending our schools; it is, therefore, my determination that [A.F.] may not continue to attend District schools."

On February 26, 2001, respondent board heard petitioner"s appeal of the superintendent"s determination. By letter dated February 28, 2001, respondent board notified petitioner that it affirmed the determination of its superintendent finding that A.F. was residing in its district for the sole purpose of attending its schools. Accordingly, respondent informed petitioner that A.F. would not be permitted to attend respondent"s schools " which she had been attending during the pendency of the appeal " after March 15, 2001. This appeal ensued.

Petitioner asserts that she has surrendered custody and control of A.F. to a family friend who resides within the district, and that A.F. should therefore be permitted to attend respondent"s schools tuition-free. Respondent contends that the appeal must be dismissed for defective service. Further, respondent asserts that it was justified in its determination that A.F. was residing in its district for the sole purpose of attending its schools.

In the affidavit submitted by respondent"s superintendent of schools, he asserts that petitioner attempted to commence this action by serving upon respondent a notice of petition together with an affidavit of verification. Petitioner failed, however, to serve respondent with a petition, as required by 8 NYCRR "275.8(a) of the Commissioner"s regulations. The appeal must therefore be dismissed for defective service (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161).

The appeal must also be dismissed on the merits. Education Law "3202(1) provides, in pertinent part:

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 Karmin, 41 Ed Dept Rep ___, Decision No. 14,618; Appeal of Waters, 41 id. ___, Decision No. 14,616; Appeal of Reynolds, 41 id. ___, Decision No. 14,604). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of Karmin, supra; Appeal of Waters, supra; Appeal of Reynolds, supra).

Furthermore, a child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Karmin, supra; Appeal of Waters, supra; Appeal of Mario D., 41 Ed Dept Rep ____, Decision No. 14,600). However, this presumption may be rebutted (Appeal of Karmin, supra; Appeal of Mario D., supra). 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 Karmin, supra; Appeal of Mario D., supra). Where the parent continues to exercise custody and control of the child and continues to support him or her, the presumption is not rebutted and the child's residence remains with the parent (Appeal of Karmin, supra). 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 Vinci, 40 Ed Dept Rep _____, Decision No. 14,539; Appeal of Lapidus, 40 id. ____, Decision No. 14,408).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Karmin, supra). Here, petitioner has failed to rebut the presumption that A.F. resides with her mother because she has not established that she has truly transferred custody and control of A.F. to the family friend who resides within the district. On the contrary, it appears that petitioner"s surrender of control and custody was limited in several significant ways. For example, on the application submitted to the district by the family friend, she indicated that petitioner would claim A.F. as a dependent for income tax purposes and would be responsible for A.F."s medical treatment and the expenses associated with her room and board, clothing and other necessities, including school supplies. In any event, it appears that the sole reason for A.F. to reside with the family friend is to attend school in respondent"s district. In her application for A.F."s admission to respondent"s schools, for example, petitioner stated: "we"re trying to keep her in a school that she loves and would like to graduate from." Accordingly, it cannot be said that respondent"s determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

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