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Decision No. 13,470

Appeal of ROSE PALMA, on behalf of ROSEANN and PHYLLIS PALMA, from action of the Board of Education of the Sachem Central School District regarding residency.

Decision No. 13,470

(August 17, 1995)

Aiello, Cannick & Esposito, Esqs., attorneys for petitioner, Robert J. Aiello, Esq., of counsel

Ingerman, Smith, Greenberg, Gross, Richmond, Esqs., attorneys for respondent, Christopher Venator, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's determination that her children, Roseann and Phyllis, are not residents of the Sachem Central School District ("district") and are, therefore, not entitled to continue to attend its schools tuition free. The appeal must be dismissed.

Petitioner's children attended Sachem North and South High Schools in respondent's district in the 1994-95 school year. On March 20, 1995, respondent informed petitioner that her children would not be allowed to attend school in the district tuition free, effective April 15, 1995, unless petitioner submitted evidence of residence. Petitioner informed respondent that she rents an apartment in respondent district. However, upon investgation, respondent discovered petitioner still owned a home in Lake Grove, within the Middle Country Central School District, and that her Department of Motor Vehicles records, phone directory records, police department records, court records and local municipality records reflected her address to be in Lake Grove. Based on this information, respondent determined that petitioner was not a resident and that her children were not entitled to a free education in Sachem.

Petitioner began this appeal and requested a stay. On April 17, 1995, the Commissioner ordered respondent to readmit Roseann and Phyllis to the district's schools, pending a determination on the merits.

Petitioner seeks an order allowing Roseann and Phyllis to attend school tuition free in respondent's school district. She contends that her children have resided within the district for two years and intend to reside there for three more years. Respondent counters that petitioner's children are residents of the Middle Country Central School District and are not entitled to attend the Sachem schools.

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 Brutcher, 33 Ed Dept Rep 56; Appeal of Curtin, 27 id. 446; Matter of Buglione, 14 id. 220).

A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Brutcher, supra; Appeal of Gwendolyn B., 32 Ed Dept Rep 151; Appeal of Pinto, 30 id. 374). Residence for purposes of Education Law '3202 is established based upon two factors: physical presence as an inhabitant within the district (Vaughn, et al. v. Bd. of Educ., 64 Misc. 2d 60; Appeal of Varghese, 34 Ed Dept Rep 455; Matter of Whiteman, 24 id. 337) and an intent to reside in the district (Appeal of Varghese, supra; Matter of Whiteman, supra; Matter of Manning, 24 Ed Dept Rep 33). Moreover, for purposes of Education Law '3202, a person can have only one legal residence (Appeal of Britton, 33 Ed Dept Rep 198; Appeal of Wadas, 21 id. 577). A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Gibson, 31 Ed Dept Rep 284; Appeal of Reifler, 31 id. 235).

The record evidence demonstrates that petitioner does not reside in the Sachem district. Petitioner's driver's license and car registration list her Lake Grove address as petitioner's residence. Moreover, petitioner's listing in the telephone directory is in Lake Grove. Furthermore, when respondent's superintendent telephoned petitioner's listed telephone number, one of petitioner's daughters answered and said her mother was not home -- not that she lived elsewhere. Additionally, a pending legal matter involving petitioner's daughter, Phyllis, lists Lake Grove as her daughter's residence. Based upon the foregoing, I find that the weight of credible evidence supports petitioner's residence in Lake Grove.

Because I find that petitioner still resides at the Lake Grove address, I also find that her children reside there and are, therefore, not residents of respondent school district. Accordingly, respondent's determination that petitioner's children are not residents of the district is reasonable and will not be set aside (Appeal of Bianco, 34 Ed Dept Rep ___; Decision No. 13436; dated June 27, 1995; Appeal of Brutcher, supra; Appeal of Ritter, supra; Matter of Delgado, supra).