Appeal of DANIEL CONNOLLY, on behalf of his son CHRISTIAN, from action of the Board of Education of the New Paltz Central School District regarding residency.

Decision No. 15,262

(July 28, 2005)

Shaw & Perelson, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the New Paltz Central School District ("respondent") that his son is not a district resident. The appeal must be dismissed.

Petitioner and his son resided in respondent's district until 2004 when they moved into "temporary" housing outside the district.

In December 2004, it came to the district's attention that petitioner and his son resided outside the district. Respondent's superintendent sent petitioner a letter dated December 17, 2004, questioning the child's eligibility to attend the district's schools, requesting a meeting with petitioner and directing him to submit proof of residency by January 3, 2005. Petitioner did not respond to the letter. In a subsequent conversation with the superintendent, petitioner admitted that he and his son reside outside the district. By letter dated January 11, 2005, the superintendent informed petitioner of his decision that his son was not a district resident. By letter dated February 28, 2005, respondent upheld the superintendent's decision. This appeal ensued.

Petitioner admits that he and his son reside outside respondent's district. He asserts that he has a temporary residence in a State-owned dwelling on a month-to-month basis and that when he loses the temporary housing, he will move back to respondent's district.

Respondent contends that petitioner's son is not a district resident and that its decision should be upheld.

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).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365). A person's temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one's permanent residence (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757). To determine one's intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family's continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

Based on the record before me, I find that petitioner has failed to present sufficient evidence that his move was temporary and that he has made any effort to return to respondent's district. Under these circumstances, I cannot find respondent's determination to be unreasonable. If, at some future date, petitioner and his son do relocate to an address within respondent's district, petitioner may then reapply for his admission.

THE APPEAL IS DISMISSED.

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