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Decision No. 14,401

Appeal of ROBERT D. HARMON, on behalf of CHAD R. HARMON, from action of the Board of Education of the Bethlehem Central School District regarding residency.

Decision No. 14,401

(July 19, 2000)

Roger M. Fritts, Esq., attorney for respondent

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

Until August 1999, petitioner, Chad's mother and Chad resided together within the City School District of the City of Rensselaer. As a result of petitioner's separation from Chad's mother, Chad and his mother left Rennselaer and moved in with a family friend in respondent’s district. Chad enrolled in respondent’s school at the start of the 1999-2000 school year. Sometime during the 1999-2000 school year, petitioner and Chad’s mother reconciled and she returned to live with petitioner in Rennselaer. Chad, however, continued to live with the family friend to continue in respondent’s school. On March 21, 2000, respondent’s superintendent informed petitioner that Chad was no longer a district resident and the payment of tuition would be required for Chad to continue to attend respondent’s school. Petitioner commenced this appeal and his request for interim relief was granted on April 10, 2000.

Petitioner contends that Chad’s academic performance has greatly improved during his enrollment in respondent’s district. Petitioner alleges that he is actively seeking to relocate his family to respondent’s district. Respondent contends that petitioner and Chad are not district residents.

The appeal must be dismissed. 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 D. F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). A child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Bogetti, 38 Ed Dept Rep 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). For the purposes of Education Law "3202(1), residence is established based upon two factors: physical presence as an inhabitant of the district and the intent to reside in the district (Appeal of Gentile, 39 Ed Dept Rep 23, Decision No. 14,161; Appeal of Morgan, 38 id. 207, Decision No. 14,016). Furthermore, for purposes of the statute, a person can have only one legal residence (Appeal of Morgan, id.; Appeal of Daniels, supra).

Petitioner fully admits that he and Chad reside outside respondent’s district, although he expresses an intention to relocate to respondent’s district because of Chad’s improved academic performance. Accordingly, I find that respondent’s determination that Chad is not a district resident was not arbitrary, capricious or unreasonable and should not be set aside. In the event that petitioner and his family relocate to respondent's district at some future date, petitioner can reapply for Chad's admission to respondent's schools at that time.