MILLS, Commissioner.--Petitioner, appeals a determination by the Board of Education of the City School District of the City of New Rochelle ("respondent") that his daughter, Darnyell, is not a district resident. The appeal must be dismissed.

Petitioner allegedly resides in New Rochelle, within respondent"s district. His daughter, Darnyell, was a junior in New Rochelle High School in September 2001. In late September 2001 respondent"s director of pupil services received a call from a parent informing her that Darnyell resided in Mount Vernon with her mother. Based upon this information, the district commenced an investigation of Darnyell"s residency. Surveillance revealed that on four mornings in October, Darnyell boarded a bus in Mount Vernon, and rode to New Rochelle High School. On two other school day mornings the investigator went to petitioner"s home in New Rochelle at 7:00 a.m. and found no one home.

By letter dated November 1, 2001, petitioner and Darnyell"s mother were asked to submit information concerning Darnyell"s residence. On November 7, Darnyell"s mother advised the director of pupil services that she lived in Mount Vernon. On November 13, 2001 petitioner and Darnyell"s mother met with the director. They told the director that they were separated, that they had moved from the area for a time, but now petitioner resides in the district, and Darnyell"s mother resides in Mount Vernon. Petitioner and Darnyell"s mother represented that Darnyell stays with her mother on Sundays, Tuesdays and Wednesdays, with her father on Mondays and Thursdays and is "back and forth" on Fridays and Saturdays. They informed respondent that Darnyell works at a market in Mount Vernon, on Tuesdays, Wednesdays and Fridays. Following this meeting, respondent"s investigator went to petitioner"s home on two additional mornings in December and found no one there.

By letter dated January 2, 2002 the director informed petitioner of her determination that his daughter did not reside in the district. By letter dated January 19, 2002, Darnyell"s mother informed the district that Darnyell would no longer attend respondent"s high school due to "district location." She requested that Darnyell"s records be forwarded to Mount Vernon High School and advised that Darnyell would attend Mount Vernon High School beginning January 22, 2002. This appeal ensued. Petitioner"s request for interim relief was denied on February 26, 2002.

Petitioner contends that he lives within the district, that his daughter resides with him part-time and is, therefore, entitled to attend respondent"s schools.

Respondent contends that the petition is untimely. Respondent also alleges that Darnyell resides with her mother in Mount Vernon.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent's January 2, 2002 letter notified petitioner that his daughter would be excluded from respondent"s schools, yet petitioner did not commence an appeal until February 13, 2002, more than 40 days later. Petitioner has not offered any reason for the delay.

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits. Education Law "3202(1) provides, in pertinent part:

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 Pierre, 40 Ed Dept Rep 538, Decision No. 14,551; Appeal of Lapidus, 40 id. 21, Decision No. 14,408; Appeal of Epps, 39 id. 778, Decision No. 14,377). Residence for purposes of "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 Silvestro, 40 Ed Dept Rep 259, Decision No. 14,476; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). A child's residence is presumed to be that of his or her parents or legal guardians (Appeal of Morgan, 38 Ed Dept Rep 207, Decision No. 14,016; Appeal of Cortes, 37 id. 114, Decision No. 13,818). Where a child's parents live apart, the child can have only one legal residence (Appeal of Lavelanet, 39 Ed Dept Rep 56, Decision No. 14,171; Appeal of Plesko, 37 id. 238, Decision No. 13,850).

In an appeal to the Commissioner of Education pursuant to Education Law "310, petitioner has the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Lavelanet, supra; Appeal of Plesko, supra). Petitioner"s conclusory statement that he and Darnyell"s mother share custody of her, that she resides with each parent for a portion of the week, and that petitioner has designated the New Rochelle address as her residence for education purposes, is the only proof submitted by petitioner. I have previously held that where a court awards joint custody of a child and the child's time is essentially divided between two households, the parents may designate the child's residence (Appeal of Cortes, supra). However, in this case, I find that petitioner has failed to sustain his burden of establishing that he has a joint custody arrangement, or an informal custody agreement for Darnyell that divides her time between the two households. In the absence of such proof, I cannot find that petitioner is entitled to designate New Rochelle as his daughter"s residence for education purposes. Rather, the child's residency must be determined by examining the traditional residency factors, physical presence as an inhabitant in the district and an intent to reside in the district (Appeal of Razzano, 38 Ed Dept Rep 782, Decision No. 14,142; Appeal of Dimbo, supra).

Respondent"s surveillance results suggest that Darnyell resides with her mother in Mount Vernon, outside respondent"s district. On a number of occasions Darnyell was seen taking the bus from her mother"s home in Mount Vernon to New Rochelle High School. Additionally, respondent"s investigators were unable to find either petitioner or his daughter at his home at 7:00 a.m. on four occasions, even on days when Darnyell purportedly stayed with petitioner. Moreover, subsequent to respondent"s determination that Darnyell was not a district resident, her mother sent a letter withdrawing her from respondent"s school due to "district location."

On the basis of the evidence in the record before me, I find that petitioner has failed to sustain his burden of establishing that he has a joint custody arrangement or that, pursuant to any custody agreement, Darnyell essentially divides her time between the two households (Appeal of Lavelanet, supra; Appeal of Razzano, supra). Thus, it was reasonable for respondent to conclude that Darnyell resides outside of respondent's district and is not entitled to attend the district's schools tuition-free.

THE APPEAL IS DISMISSED.

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