MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District ("respondent") that his son, B.J., is not a district resident. The appeal must be sustained in part.

During the 2001-2002 school year, B.J. was an eighth grade student at Memorial Junior High School in respondent"s district. In March 2001, the Nassau County Family Court ordered that B.J. and his brothers be temporarily removed from their parents" custody. According to respondent, at the time of their removal, the children resided with their mother, who is separated from petitioner, at a residence on Viola Street, Valley Stream, within respondent"s district.

By letter dated August 24, 2001, a supervisor at Nassau County"s Children Protective Services ("CPS") advised the district that petitioner had been awarded temporary custody of B.J. and his brothers. The letter further stated that the family had experienced a period of crisis and was in the process of being reunited. The letter also recommended that the children remain in their current school district.

Subsequently, respondent received information that petitioner and his sons were residing in premises located on 132^nd Avenue in Rosedale, Queens, outside the district. In response to this information, the district instructed its residency consultant to investigate to determine the residency of petitioner and his sons. From November 29 to December 5, 2001, the consultant surveilled the Rosedale residence on four mornings. Each time, he observed petitioner and his sons leave the Rosedale residence, enter a vehicle, drive to the Valley Stream residence, enter the Valley Stream residence for a brief period, exit the Valley Stream residence and then drive to the children"s respective schools. The district did not conduct additional surveillance on the Valley Stream residence.

By letter dated December 7, 2001, respondent"s superintendent advised petitioner that, based upon the district"s investigation, the district had determined that B.J. was not a district resident and was not entitled to attend respondent"s schools as of December 21, 2001. This appeal ensued. Petitioner"s request for interim relief was rendered moot by respondent"s decision to allow B.J. to remain in school pending a final determination herein.

After this appeal was commenced, the district learned that a Family Court hearing was scheduled for February 2002 to determine permanent custody of B.J. and his brothers. Sometime after this hearing, petitioner advised respondent"s assistant superintendent for administration and support services ("assistant superintendent") that the Court had awarded custody of the children to their mother. The assistant superintendent then made several unsuccessful attempts to obtain documentation from petitioner confirming the Court"s custody determination. Furthermore, on April 24, 2002, B.J."s guidance counselor spoke with a CPS employee who advised her that the Court had awarded permanent custody of B.J. to petitioner.

Petitioner contends that he resides with his sons at the Viola Street residence in Valley Stream, within respondent"s district and that his sons are entitled to attend the district"s schools without the payment of tuition. To substantiate this contention, he submits a paycheck stub; a book club bill; a utility bill; a letter from his employer to respondent"s superintendent; a deed; two oil bill receipts; a homeowner"s insurance receipt; a school tax receipt; a property tax receipt; a federal income tax return for 2000; and a registered voter"s notification card all bearing his name and reflecting the Viola Street address in Valley Stream.

Respondent contends that petitioner has custody of B.J. and though he owns a residence in the district, petitioner has failed to establish that he and B.J. are physically present in the district. Respondent further contends that petitioner has failed to sustain his burden of demonstrating a clear legal right to the relief requested and that its decision was not arbitrary, capricious or unreasonable.

I must first address several procedural matters. This appeal consists of three separate petitions, one petition for each of petitioner"s sons. Section 275.8(a) of the Commissioner"s regulations requires that the petition be personally served upon each named respondent. Since respondent"s answering papers only addressed the claims raised in the petition brought on behalf of B.J., my Office of Counsel, pursuant to "276.5 of the Commissioner"s regulations, inquired as to whether respondent had been served with petitions on behalf of the other two children. In response to this inquiry, respondent advised that it had not been served with petitions on behalf of either child. It further appears that M.J. and J.J. are of elementary school age and are not yet attending respondent"s schools. Consequently, since petitioner has failed to serve respondent with petitions on behalf of these children, the appeal must be dismissed with respect to the residency claims that petitioner has asserted on their behalf.

Moreover, subsequent to the filing of its answer respondent requested permission to submit additional affidavits, supporting exhibits and a memorandum of law. Respondent states that it did not submit these documents with its answer because CPS had informed it that the family was in the process of reuniting and it was hopeful that the residency issue would resolve itself without the need for further litigation. Additionally, respondent states that the information contained in one affidavit was not obtained by the district until after the answer was filed. Pursuant to "276.5 of the Commissioner"s regulations, I have accepted these documents because they concern substantive issues relating to petitioner"s residency claims.

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 Bell, 41 Ed Dept Rep ____, Decision No. 14,748; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377). For purposes of Education Law "3202, a person can have only one residence (Appeal of Lockwood, 42 Ed Dept Rep _____, Decision No. 14,763). Residence for purposes of Education Law "3202 is established based on two factors: physical presence as an inhabitant within the district and an intent to remain in the district (Appeal of Lockwood, supra; Appeal of Vinueza, 41 Ed Dept Rep ____, Decision No. 14,746; Appeal of Gentile, 39 id. 23, Decision No. 14,161).

Respondent"s determination is based largely upon the surveillance of its residency consultant. On four mornings from November 29 to December 5, 2001, the consultant observed petitioner and his sons leave the Rosedale residence, drive to the Valley Stream residence and then to the children"s respective schools. Respondent also relies on the information B.J."s guidance counselor received from a CPS employee that the Court had awarded permanent custody of B.J. to petitioner.

I do not find this evidence to be inconsistent with petitioner"s contention that he and his sons reside at the Valley Stream residence. The fact that petitioner was observed on four mornings between late November and the first week of December leaving the Rosedale address is certainly not dispositive of the question of residency (Appeal of Chan, 39 Ed Dept Rep 200, Decision No. 14,214). Respondent never conducted surveillance at the Viola Street address, either before or after it learned that petitioner had purportedly been awarded custody of B.J., to determine if they resided there.

Petitioner, on the other hand, has provided numerous documents listing his address as Viola Street in Valley Stream. The record also contains a letter from petitioner"s employer that suggests that petitioner"s work schedule and child care arrangements may have been factors during the period of surveillance.

After carefully reviewing the record, I do not find sufficient evidence to support respondent"s determination that B.J. is not a district resident (Appeal of Vinueza, supra; Appeal of Chan, supra; judgment granted dismissing petition to review, Supreme Court, Albany County, Connor, J., June 7, 2000, n.o.r.).

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that the appeal is dismissed with respect to the residency claims petitioner has asserted on behalf of his sons, M.J. and J.J.

IT IS FURTHER ORDERED that respondent allow B.J. to attend school in the Valley Stream Central High School District without the payment of tuition.

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