(dissenting). We agree with the majority’s analysis and its conclusion that there is nothing unreasonable or irrational in the Commissioner’s interpretation of Education Law § 3202 and his finding that Dell was not a resident of the Edmeston Central School District and thus not entitled to a free tuition education at the expense of the district. We depart from the decision of the majority where it finds that the parents have overcome the concomitant presumption that a child’s residence is that of his parents.
The presumption may be overcome by demonstrating that the parent does not exercise control over the child (see, Matter of Board of Educ. v Allen, 29 AD2d 24, 28), which includes providing financial support. This interpretation of the statute, the presumption and the requirements to overcome that presumption are well established (see, Matter of Horowitz v Board of Educ., 217 App Div 233, 238) and are, apparently, accepted by the majority. Our difficulty in accepting their ultimate conclusion is that we are unable to unearth any alteration in the factual setting which imposed initial and continuing responsibility for Dell’s education upon his "home” district, Bedford Central School District, other than his parents’ voluntary change of residence from that school district to Massachusetts. This change of residence is, clearly, the only change in circumstances and the precipitating cause of this and related litigation. Although Dell still resides in the family home with the Condes and remains under their day-by-day care and control, his parents have been and remain financially responsible for his care and maintenance and occupy the same *33parental position they have occupied since the original contract was negotiated between the Committee on the Handicapped at the Bedford Central School District and the Edmeston Central School District in 1978. These facts, superimposed upon the continuing financial support of Dell, provide a sufficient basis to support the Commissioner’s determination that the presumption has not been overcome.
On this issue, we are unable to accept the majority’s conclusion that the Bedford Central School District’s original assumption of responsibility for Dell’s education was purely "voluntary” simply because that issue was never litigated or determined by any competent administrative or judicial authority. The record supports a contrary conclusion which, in our view, has direct bearing on the legal issue presented here. A letter dated June 1, 1978 from the director of pupil personnel of Bedford Central School District to the chairman of the Committee on the Handicapped at Edmeston Central School District stated: "Since legally [Dell] is entitled to the service that you prescribe through your Committee on the Handicapped, and since legally the child is a resident of this district, the Bedford Central School District will be legally responsible for the expenses involved.” Therefore, we remain unpersuaded that the recognition and implementation of an acknowledged legal obligation to disburse public funds falls within the ambit of a voluntary act.
Nor can we agree with the majority’s conclusion that the Commissioner is, in effect, requiring nonresident parents to "default on their obligation to support their child and relinquish their parental rights” in order to rebut the residency presumption. Dell’s parents remain free to establish a residence of their choice notwithstanding that the residence may incidentally create or preclude the opportunity to attend a particular school (see, Matter of Moncrieffe, 121 Misc 2d 395, 397; see also, Plyler v Doe, 457 US 202). It was in exercising this freedom that Dell’s parents left their home district and the attendant benefit of the Bedford Central School District’s responsibility over Dell’s education in the Edmeston Central School District.
Accordingly, we would reverse the order and judgment appealed from, grant summary judgment in favor of defendants, make a declaration in their favor and remit the matter *34to Supreme Court for a determination of the amount owed for tuition.
Weiss and Harvey, JJ., concur with Casey, J.; Mahoney, P. J., and Kane, J., dissent and vote to reverse in an opinion by Kane, J.
Order and judgment affirmed, with costs.