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Decision No. 15,258

Appeal of CRYSTAL HUGHES, on behalf of her children DAVID and KATHRYN, from action of the Board of Education of the Pawling Central School District regarding residency.

Decision No. 15,258

(July 28, 2005)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pawling Central School District ("respondent") that her children are not district residents. The appeal must be dismissed.

Petitioner and her children resided in respondent's district until 2002 when the house they were residing in was sold and they moved outside the district.

In the fall of 2005, it came to the district's attention that petitioner and her children resided outside the district. Respondent's superintendent sent petitioner a letter dated October 21, 2004, questioning the children's eligibility to attend the district's schools and directing petitioner to submit proof of residency. Thereafter, petitioner met with the superintendent at which time petitioner admitted that she and her children resided outside of the district.

The superintendent agreed to allow petitioner's children to remain in school until the end of the first semester to allow petitioner time to re-establish residency. Petitioner failed to do so. By letter dated January 13, 2005, the superintendent informed petitioner that her children would no longer be permitted to attend district schools. This appeal ensued. Petitioner's request for interim relief was granted on February 4, 2005.

Petitioner admits that she and her children reside outside respondent's district. She asserts that this situation is temporary and that she has made efforts to move back into the district but needs more time to do so.

Respondent contends that petitioner's children are not district residents and that district officials have provided petitioner with ample time to return to the district and petitioner has failed to do so. Respondent also contends that the petition should be dismissed because petitioner failed to name the superintendent as a necessary party.

As a preliminary matter, I reject respondent's contention that the petition should be dismissed for failure to join the superintendent as a necessary party. Section 100.2(y) of the Commissioner's regulations permits a Board of Education or its designee to make residency determinations. Respondent appointed its superintendent as its designee and is responsible for his determination.

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 Cross, 44 Ed Dept Rep 58, Decision No. 15,098; Appeal of G.P., 44 id. 52, Decision No. 15,096; Appeal of Chorro, 44 id. 50, Decision No. 15,095). "Residence" for purposes of Education Law �3202 is established by one's physical presence as an inhabitant within the district and intent to reside in the district (Longwood Cent. School Dist. v. Springs Union Free School Dist., 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision No. 15,109; Appeal of W.D. and P.Z-D., 44 id. 77, Decision No. 15,104). A child's residence is presumed to be that of his or her parents or legal guardians (Catlin v. Sobol, 155 AD2d 24, revd on other grounds, 77 NY2d 552 (1991); Appeal of L. H., 44 Ed Dept Rep 100, Decision No. 15,110; Appeal of Innocent, 44 id. 81, Decision No. 15,105).

A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365). A person's temporary absence from a school district of residence does not necessarily constitute either the establishment of a residence in the district where one is temporarily located, or the abandonment of one's permanent residence (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Leontakianakos, 42 id. 10, Decision No. 14,757). To determine one's intent as to whether a living arrangement is indeed temporary, the Commissioner must consider evidence regarding the family's continuing ties to the community and their efforts to return (Appeal of Collins, 44 Ed Dept Rep 74, Decision No. 15,103; Appeal of Weisberg, 39 id. 737, Decision No. 14,365).

Based on the record before me, I find that petitioner has failed to present sufficient evidence that her family's move was temporary or that she or her children have maintained ties to the Pawling community. Petitioner has had over three years to return to the district and has failed to do so. It is not unreasonable for a district to deny residency under these circumstances. If, at some future date, petitioner and her children do relocate to an address within respondent's district, petitioner may then reapply for their admission.