Appeal of MAUREEN and MARK WALLACE, on behalf of their daughters BRIANNA and MARIAH, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 15,252

(July 15, 2005)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Deer Park Union Free School District ("respondent") that their daughters, Brianna and Mariah, are not district residents. The appeal must be dismissed.

By letter dated February 15, 2005, the district attendance teacher notified petitioners that an investigation had determined that petitioners' daughters were no longer residing in respondent's district. The letter informed petitioners that the children would be dropped from enrollment effective March 4, 2005 and advised petitioners to register the children in the appropriate school district. Petitioners appealed this determination to respondent. By letter dated March 16, 2005, respondent denied petitioners' appeal. This appeal ensued. Petitioners' request for interim relief was granted on April 26, 2005.

Education Law �3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105). Petitioners admit that they moved out of respondent's district on February 15, 2005. Therefore, the appeal must be dismissed.

In addition, the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087). To the extent that petitioners request that their children be permitted to attend school in respondent's district through the end of the 2004-2005 school year, the appeal is moot because the school year has ended and petitioners have received the relief they sought (Appeal of Welch, 44 Ed Dept Rep 57, Decision No. 15,097).

THE APPEAL IS DISMISSED.

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