MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Gates-Chili Central School District ("respondent") that her children, Tabitha and Stephen, Jr., are not district residents. The appeal must be sustained.

Petitioner alleges that she resides with her two children on Janice Drive in Rochester, within respondent"s district, and that her estranged husband lives on Mayflower Street, outside respondent"s district. Petitioner"s daughter, age 9, and son, age 7, have attended school in respondent"s district since they began attending school. In June 2002, respondent began investigating petitioner"s residency after the attendance office received a referral form from the principal"s office at Tabitha"s elementary school indicating that Tabitha stated on numerous occasions that she lives with both parents in "Greece", which is apparently outside respondent"s school district.

By letter dated June 14, 2002, respondent"s attendance teacher advised petitioner that her children would be removed from the district"s census at the end of the 2001-2002 school year because petitioner did not reside within respondent"s district. On August 14, 2001, respondent"s district clerk conducted a hearing pursuant to "100.2(y) of the Commissioner"s regulations to determine petitioner"s residency. During the hearing, the district clerk reviewed a registration form submitted by petitioner in August of 1998 listing the Mayflower Street address as petitioner"s residence and the Janice Drive address as petitioner"s husband"s residence. The district clerk also reviewed petitioner"s driver"s license, issued in November 2001, and a document from the Board of Elections, both reflecting the Mayflower Street address. Although it is not clear from the record what, if any, proof petitioner submitted during the residency hearing, shortly thereafter petitioner submitted copies of her 1998 and 2001 W-2 forms reflecting the Janice Drive address. Based on the proof adduced, the district clerk concluded that petitioner and her children were not district residents, and notified petitioner of her determination by letter dated August 19, 2002. This appeal ensued. Petitioner"s request for interim relief was granted on September 13, 2002.

Petitioner claims that she and her children are district residents. To support her claim, petitioner submits a number of recent documents pre-dating respondent"s residency investigation that reflect the Janice Drive address, including a copy of a credit card bill, a bill from an optometrist for services provided to Tabitha, and an account statement from a credit union. Petitioner also submits her W-2 forms from 1998 and 2001. Finally, she submits an unsworn letter from her neighbor and a notarized statement from petitioner"s estranged husband, both confirming that petitioner and the children reside on Janice Drive.

Respondent contends that it properly determined that petitioner and her children are not district residents. Respondent states that in June of 2002, respondent"s husband admitted to its attendance teacher that petitioner and the children live with him at the Mayflower Street address outside the district. Respondent also cites the documentation reviewed by the district clerk during the residency hearing to support its conclusion that petitioner and her children are not district residents. Respondent also asserts that the statements submitted by petitioner from her husband and neighbor were not submitted by petitioner during the residency hearing.

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 a Student with a Disability, 41 Ed Dept Rep , Decision No. 14,613; Appeal of Johnson, et al., 40 id. 29, Decision No. 14,411). Residency 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 a Student with a Disabilitysupra, Appeal of Johnson, supra; Appeal of Anand, 35 Ed Dept Rep 65, Decision No. 13,466). A child"s residence is presumed to be that of his or her parent or legal guardian (Appeal of Samuel, 39 Ed Dept Rep 94, Decision No. 14,183; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). Where a child"s parents live apart, the child can have only one legal residence (Appeal of a Student with a Disability, supra; Appeal of Bouttry-Martin, 37 Ed Dept Rep 125, Decision No. 13,820).

Although the record presents a close case, I find insufficient evidence to support respondent"s determination that petitioner is not a district resident. Petitioner has submitted a number of recent documents that support her residency claim, including W-2 forms, bills and an account statement listing her address as Janice Drive. Respondent"s determination relies, in large part, on outdated documents. For example, petitioner"s 1998 registration form stating that she resided at the Mayflower Street address has little, if any, probative value in determining petitioner"s current residency. Similarly, the voter registration documentation reflects that petitioner voted using the Mayflower Street address in 2000. Although petitioner fails to explain why her driver"s license issued in November of 2001 lists the Mayflower Street address, she maintains that she voted under that address in 2000 as a matter of convenience since she had previously been registered there. In short, although petitioner has not fully explained some of the discrepancies in the record, on balance, I do not find these discrepancies sufficient to overcome the evidence submitted by petitioner in support of her claim. Moreover, despite the conflicting documentary proof, respondent did not supply any surveillance evidence to support its findings. Under these circumstances, I find that respondent"s determination that petitioner and her children are not district residents is based upon insufficient evidence and is therefore arbitrary and capricious (see, Appeal of Pacheco, 38 Ed Dept Rep 112, Decision No. 13,995). However, respondent is free to revisit the issue of petitioner"s residency in the future if it obtains additional information indicating that petitioner and her children are not district residents.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent admit petitioner"s children to the schools of the district without payment of tuition.

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