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Decision No. 12,920

Appeal of JACK KIND, on behalf of his son LEE KIND, from action of the Board of Education of the Spackenkill Union Free School District regarding residency.

Decision No. 12,920

(April 22, 1993)

Satz & Kirshon, Esqs., P.C., attorneys for petitioner, Maria G. Rosa, Esq., of counsel

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Rochelle J. Auslander, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's determination that his son is not a resident of the Spackenkill Union Free School District ("the district") and is therefore not entitled to continue to attend its schools tuition free. The appeal must be dismissed.

Petitioner's son, Lee, has been enrolled in respondent's district since the 1987-88 school year. He is currently enrolled in the 11th grade. Petitioner and his wife are in the process of obtaining a divorce and have joint custody of Lee. Petitioner resides in the Poughkeepsie City School District but maintains an ownership interest in the family home in respondent's school district, which his wife continues to occupy. During the 1990-91 school year, petitioner's son moved out of his mother's home and moved in with petitioner in the Poughkeepsie school district. Upon discovering that petitioner's son no longer lived in its school district, the superintendent informed petitioner that Lee could no longer attend the Spackenkill school district tuition free. Although Lee lived with him in Poughkeepsie, petitioner informed the superintendent on June 19, 1991 that petitioner intended Lee to complete high school in respondent's district.

Both petitioner and his son's psychiatrist voiced their concern to respondent that moving Lee to a new school would adversely affect him. In response, respondent agreed to allow petitioner's son to continue in the district, tuition free, for the first semester of the 1991-92 school year. This decision was based on petitioner's representation that he intended to move back into the marital residence with his son by the end of the first semester.

During the second semester of the 1991-92 school year, however, petitioner's son continued to live with petitioner in Poughkeepsie. In response to petitioner's request, the superintendent agreed to allow petitioner's son to complete the 1991-92 school year. The superintendent granted this permission with the understanding that tuition free enrollment would not be approved beyond September 1, 1992 if petitioner's son continued to live with petitioner outside respondent's district.

Notwithstanding the superintendent's decision, petitioner sought to enroll his son in the district for the 1992-93 school year. By letter dated September 22, 1992, the superintendent advised petitioner that his son would not be permitted to attend the district tuition free, after September 30, 1992. On October 5, 1992, petitioner met with the superintendent, seeking to have his son remain in school. The superintendent agreed to allow Lee to remain until November 4, 1992, but denied petitioner's request for any further extension because Lee was still living with petitioner in the Poughkeepsie City School District. This appeal followed.

Petitioner asserts that his son should be allowed to finish the school year in respondent school district, tuition free, even though he lives with petitioner outside the district. Respondent contends that because petitioner's son is not a resident of the district, he is not entitled to attend tuition free. Respondent also seeks tuition for the 1992-93 school year in an amount equal to the difference between the tuition charges and the school taxes paid by petitioner.

Education Law '3202(1) provides:

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 school maintained in the district in which the person resides without the payment of tuition.

A child's residence is presumed to be that of his parents (Appeal of Juracka, 31 Ed Dept Rep 282; Matter of Forde, 29 id. 359). Where a child's parents live apart, the child can have only one legal residence (People ex. rel. The Brooklyn children's Aid Society v. Hendrickson, et al., 54 Misc 337, aff'd. 196 NY 551; Appeal of Juracka, supra; Matter of Manning, 24 id. 33). Where a child's time is divided between two households, the determination of the child's residence rests ultimately with the family (Appeal of Juracka, supra; Appeal of Forde, 29 Ed Dept Rep 359).

As the party challenging petitioner's residency, the board of education has the burden of establishing that petitioner does not reside in its district (Appeal of Lenz, 32 Ed Dept Rep 132; Appeal of Bonfante-Ceruti, supra). It is undisputed that this student lives with petitioner, who resides outside respondent school district. Moreover, it is uncontested that petitioner's son intends to remain with his father. Since residence is based upon an individual's physical presence within the district and an intention to remain (Appeal of Anthony S., 32 Ed Dept Rep 93; Appeal of Bonfante-Ceruti, 31 id. 38), I find that respondent correctly concluded that petitioner's son does not reside in the Spackenkill Union Free School District.

Education Law '3202(2) authorizes a school district to condition a nonresident's enrollment in its schools upon the payment of tuition. Since petitioner's son is not a resident of respondent's district, respondent has the authority to require petitioner to pay tuition as a condition of his continued enrollment there. To the extent petitioner pays school taxes on his property in respondent's district, he is entitled to a deduction from the established tuition in the amount of such tax, as provided in Education Law '3202(3).