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Decision No. 15,402

Appeal of PETER and NANCY MEARSHEIMER, on behalf of their son ERIC, from action of the Board of Education of the Hendrick Hudson Central School District regarding residency.

Decision No. 15,402

(April 27, 2006)

Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel

Mills, Commissioner.--Petitioners challenge the determination of the Board of Education of the Hendrick Hudson Central School District ("respondent") that their son, Eric, is not a district resident. The appeal must be dismissed.

Petitioners are separated and maintain separate residences. Mr. Mearsheimer resides within respondent's district and Ms. Mearsheimer resides outside respondent's district. After initially dividing his time between his parents' residences, Eric moved in with his mother at the out-of-district residence on a full-time basis.

By letter dated December 13, 2005, respondent's district clerk informed petitioners that an initial determination had been made that Eric was not a district resident. By letter dated December 16, 2005, petitioners explained that Eric did not wish to live with his father at the in-district residence, but that they had not anticipated the consequences. Petitioners further explained that they had placed their out-of-district home for sale and that they intended to move back into respondent's district once the house was sold. By letter dated December 20, 2005, respondent's district clerk notified petitioners of her final determination that Eric was not a district resident and that he would not be entitled to attend district schools as of January 6, 2006. This appeal ensued. Petitioners request for interim relief was denied on January 30, 2006.

Petitioners allege that they have placed their out-of-district residence for sale and are looking for a residence within respondent's district. Petitioners also allege that it was never their intent to deceive the district and that they were acting in Eric's best interest. Petitioners request that I determine that their son is a district resident and therefore entitled to attend school on a tuition-free basis. Respondent contends that petitioners admit that their son does not reside within respondent's district and respondent cannot provide a tuition-free education to nonresidents.

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).

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 affd, 196 NY 551; Appeal of T.K., 43 Ed Dept Rep 103, Decision No. 14,935; Appeal of Williams, 42 id. 8, Decision No. 14,756). Residency is determined by the traditional tests of physical presence in the district and intent to remain there (Appeal of Williams, 42 Ed Dept Rep 8, Decision No. 14,756; Appeal of Lavelanet, 39 id. 56, Decision No. 14,171). In the present appeal, petitioners admit that Eric moved outside the district to his mother's residence with, at that time, the intent to remain there. Eric thereby established residency outside the district. Therefore, the appeal must be dismissed.

Petitioners contend that they intend to sell their out-of-district home and purchase a home within respondent's district where Eric will live. Petitioners may reapply for his admission at that time.