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Decision No. 13,668

Appeal of GARY HELMS, on behalf of his son, DAVID, from action of the Board of Education of the Deer Park Union Free School District regarding residency.

Decision No. 13,668

(August 28, 1996)

Arnold J. Hauptman, Esq., attorney for petitioner

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

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

At the beginning of the 1995-96 school year, David lived with his parents at 12 Hendel Circle, Deer Park, and attended the district's high school. In December 1995, petitioner became involved in a divorce action with David's mother. As a result of this dispute, on January 4, 1996, petitioner and his son moved to 19 Bagatelle Road, Dix Hills, an address located outside the district. David's mother continues to reside at 12 Hendel Circle, in the district.

In the context of the pending divorce action, both petitioner and David's mother have sought custody of David. However, there is no evidence that the court has issued a temporary or permanent order concerning custody.

By letter dated March 26, 1996, the district's attendance teacher notified petitioner that since he and David resided outside the district, David was no longer eligible to attend the district's schools. Petitioner's attorney appealed the decision to respondent. On April 2, 1996, respondent denied the appeal.

Petitioner commenced this appeal on April 4, 1996 and requested an interim order. On April 16, 1996, Acting Commissioner Sheldon issued an interim order directing respondent to admit David to the district's schools pending a determination on the merits.

Petitioner contends that his residence outside the district is temporary. Petitioner further contends that until the court determines custody, David's residence remains in the district. Respondent maintains that petitioner and his son reside at an address outside the district. Respondent further maintains that there is no evidence that David will ever return to reside in the district.

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.

A child's residence is presumed to be that of his parents (Appeal of Juracka, 31 Ed Dept Rep 282; Appeal 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, 104 NYS 122, aff'd. 196 NY 551; Appeal of Juracka, supra; Matter of Manning, 24 Ed Dept Rep 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, supra).

In this case, it is undisputed that David lives with petitioner outside the district. Further, there is no evidence that David spends any time at his mother's residence in the district.

There is insufficient evidence in the record to support petitioner's assertion that his residence outside the district is temporary. The record indicates that petitioner and his son moved to an apartment outside the district. Although petitioner contends that he will seek possession of the marital residence if the court awards him custody, it is not known when and if he will in fact return to the marital residence. Further, there is no evidence that petitioner intends to make arrangements to establish another residence in respondent's district if he cannot return to the marital residence. In addition, the record is devoid of any evidence that petitioner continues to maintain significant community ties within the district other than his son's continued attendance in the district's schools. Therefore, I am unable to conclude on the record before me that petitioner is in fact temporarily housed outside the district and is actively taking steps to return there (Appeal of Kenneth R., 30 Ed Dept Rep 297).

It appears from the record that it is petitioner's intention to gain permanent custody of David and to have him continue to reside with him. Since residence is based upon an individual's physical presence within the district and intention to remain (Appeal of Kind, 32 Ed Dept Rep 584; Appeal of Bonfante-Ceruti, 31 id. 38), I find that respondent correctly concluded that David does not reside within the district.

Education Law '3202(2) authorizes a school district to condition a nonresident's enrollment in its schools upon the payment of tuition. Since David is not a resident of respondent's district, respondent has the authority to require petitioner to pay tuition as a condition of David's continued enrollment. 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).

Finally, I note that David's residency status may change in the event David's mother is awarded custody or if petitioner moves back into respondent's district. In either event, the child's status should be re-evaluated by respondent.