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Decision No. 14,781

Appeal of JOHN M. MARTOCCIA, on behalf of his children, MICHAEL and CHRISTINA, from action of the Board of Education of the New Hartford Central School District regarding residency.

Decision No. 14,781

(August 21, 2002)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the New Hartford Central School District ("respondent") that his children, Michael and Christina, are not district residents. The appeal must be dismissed.

In January 2002, personnel at respondent"s bus garage reported that Michael was no longer riding the bus to school. Shortly thereafter, the dean of students at the junior high school spoke with petitioner, who informed the dean that Michael was living with him outside respondent"s district. By letter dated January 10, 2002, respondent"s superintendent informed petitioner that based on a review of residency information received from the principals of respondent"s junior and senior high schools, he had determined that Michael and Christina were no longer district residents and would be ineligible to attend respondent"s schools effective January 28, 2002. The letter further advised that petitioner was entitled to submit additional information concerning his children"s right to attend the district"s schools and to meet with the superintendent to discuss his determination. Petitioner met with respondent"s superintendent and the two principals on January 23, 2002.

By letter dated January 24, 2002, the superintendent advised petitioner of his determination that Christina and Michael were not district residents. He noted that both parents stated that Christina and Michael resided exclusively at petitioner"s address outside the district and gave no indication that they would return to the New Hartford residence. Accordingly, the superintendent notified petitioner that his children"s last day of school in the district would be January 25, 2002. This appeal ensued. Petitioner"s request for interim relief was denied on February 12, 2002.

Petitioner admits that Michael and Christina live with him outside respondent"s district, and that they intend to reside with him outside the district "for an indefinite period of time." Petitioner asserts, however, that because of various difficulties in their personal lives, it would be educationally and emotionally harmful to remove Michael and Christina from respondent"s schools. Respondent asserts that its determination that Michael and Christina are not district residents was neither arbitrary nor unreasonable and should not be set aside.

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 B.O. and D.O., 42 Ed Dept Rep ___, Decision No. 14,769; Appeal of Metze, 42 id. ____, Decision No. 14,768; Appeal of M.S., 42 id. ____, Decision No. 14,767). Residence for purposes of Education Law "3202 is established based upon two factors: physical presence as an inhabitant within the district and an intent to reside in the district (Appeal of B.O. and D.O., supra; Appeal of Metze, supra; Appeal of M.S., supra). Moreover, for purposes of Education Law "3202(1), a person can have only one legal residence (Appeal of Metze, supra).

While I am sympathetic to petitioner"s contention that changing schools can be difficult and that respondent"s schools offer his children a stable environment, these facts do not provide a sufficient legal basis for overturning respondent"s residency determination (Appeal of P.L., 40 Ed Dept Rep 84, Decision No. 14,427). By petitioner"s own admission, he and his children reside outside the district, and will continue to do so indefinitely. Thus, I am unable to conclude, on the record before me, that Michael and Christina are residing outside the district on a temporary basis or that petitioner is actively taking steps to return the children there.

In view of the foregoing, I find respondent"s determination to be neither arbitrary nor capricious. Accordingly, it will not be set aside.