MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Rochester Union Free School District ("respondent") that his children, James and Samantha, are not district residents. The appeal must be dismissed.

James and Samantha began attending respondent"s schools in October 1997. Pursuant to a court order, dated January 16, 2002, petitioner was granted "temporary physical residence" of James and Samantha, pending further court order. Petitioner alleges that from January 16, 2002 through February 1, 2002, the children resided with their grandmother, within respondent"s district, while petitioner, who resides outside the district, searched for housing. Petitioner further alleges that he was unable to secure adequate housing within the district and therefore moved his children into his home outside respondent"s district on or about February 1, 2002.

By letter dated March 20, 2002, respondent"s director of pupil services advised petitioner that respondent would no longer allow his children to attend its schools should they continue to reside with him outside the district after March 27, 2002. The letter further requested that petitioner contact respondent"s elementary school principal "to verify this information with her."

By letter dated March 27, 2002, respondent"s director of pupil services informed petitioner that after reviewing the information provided by petitioner in a telephone message, he had determined that James and Samantha were not entitled to attend respondent"s schools. Accordingly, the letter further advised that James and Samantha"s last day of school would be April 5, 2002. This appeal ensued. Petitioner"s request for interim relief was granted on April 22, 2002.

Petitioner asserts that although his children currently live with him outside the district, he is seeking housing for his family within respondent"s district. Petitioner further alleges that when he met with respondent"s elementary school principal on January 16, 2002 to explain his living arrangements, the principal never informed him that he and his children were required to move into the district within a specified timeframe in order for them to continue attending school there.

Respondent asserts that petitioner and his children have not lived within the district for more than two months, do not presently live within the district and apparently intend to continue residing outside the district. Furthermore, respondent asserts that should the court ultimately award custody of James and Samantha to their mother, she too resides outside respondent"s district.

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 B.O. and D.O., 42 Ed Dept Rep ___, Decision No. 14,769; Appeal of Metze, 42 id. ____, Decision No. 14,768; Appeal of M.S., 42 id. ____, Decision No. 14,767). 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 B.O. and D.O., supra; Appeal of Metze, supra; Appeal of M.S., supra). Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Metze, supra).

By petitioner"s own admission, he and his children reside outside respondent"s district. While petitioner claims that he is actively seeking adequate housing arrangements within the district, he has presented no evidence of those efforts, nor does he present any evidence of ongoing efforts to secure such living arrangements. Thus, I am unable to conclude, on the record before me, that James and Samantha are residing outside the district on a temporary basis or that petitioner is actively taking steps to return there.

In view of the foregoing, I find respondent"s determination to be neither arbitrary nor capricious. Accordingly, it will not be set aside.

THE APPEAL IS DISMISSED.

END OF FILE

---