Appeal of KRISTOFER BERLET, on behalf of his child, from action of the Board of Education of the Spackenkill Central School District regarding residency.

Decision No. 18,588

(July 15, 2025)

Thomas, Drohan, Waxman, Petigrow, & Mayle LLP, attorneys for respondent, Allison E. Smith, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Spackenkill Central School District (“respondent”) that his child (the “student”) is not a district resident.  The appeal must be dismissed.

Prior to this appeal, the student resided within respondent’s district (the “first in-district address”).  In September 2024, a letter sent by respondent to the first in-district address was returned as undeliverable.  Respondent contacted the owner of the first in-district address, who indicated that the family had moved out several months ago.

Respondent’s central registrar spoke with the student’s mother shortly thereafter.  The mother indicated that the student still resided at the first in-district address.  “When pressed,” however, she stated that the family lived with his grandmother in Hyde Park, New York, a location outside of the district’s boundaries.  Respondent proceeded to exclude the student as a non-resident.  In connection therewith, district personnel met with the student’s parents on September 24, 2024. 

At this meeting, the parents now claimed that they resided with friends at an address in Poughkeepsie, New York (the “second in-district address”).  Respondent allowed the student to remain enrolled in its schools but continued to investigate.  Respondent eventually identified an address in Wappingers Falls, New York associated with petitioner and his family (the “out-of-district address”).  The investigator conducted surveillance and observed petitioner and the student leaving from the out-of-district address on multiple occasions.

By letter dated February 24, 2025, respondent informed petitioner of its determination that the student did not reside within the district.  This appeal ensued.  Petitioner’s request for interim relief was granted on March 17, 2025.

Petitioner asserts that he and the student are temporarily residing at the out-of-district address to assist his mother with “health issues.”  Petitioner further asserts that he and his spouse’s “vehicles had broken down,” which required them to “use [his] mother’s car temporarily for transportation [to] work, school and [a]ppointments.”  Petitioner seeks a determination that the student is a district resident entitled to attend respondent’s schools without payment of tuition.

Respondent argues that its determination is supported by the evidence in the record, particularly in light of petitioner’s shifting explanations.

Education Law § 3202 (1) provides, in pertinent part, that “[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 provision is to limit a school district’s obligation to provide tuition-free education to students whose parents or legal guardians reside within the district, as a child’s residence is presumed to be that of his or her parents or legal guardians (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of Polynice, 48 id. 490, Decision No. 15,927; see Catlin v Sobol, 77 NY2d 552, 559-560 [1991]).  “Residence” for purposes of Education Law § 3202 is established by physical presence as an inhabitant within the district and intent to remain (Longwood Cent. School Dist. v Springs Union Free School Dist., 1 NY3d 385, 389 [2004]; Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320).

Once established, residency is retained until a new permanent residence is established through action and intent (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Temporary absence from a school district does not necessarily relinquish residency (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827).  Where a petitioner asserts that an out-of-district living arrangement is merely temporary, the Commissioner will consider evidence regarding the petitioner’s continuing ties to the community and efforts to return to the district (Appeal of K.S., 57 Ed Dept Rep, Decision No. 17,229; Appeal of Lin, 48 id. 166, Decision No. 15,827; Appeal of Hussain, 46 id. 108, Decision No. 15,456).

A residency determination will not be set aside unless it is arbitrary and capricious (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).  In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

At this juncture, the parties agree that petitioner and the student reside at the out-of-district address; the only question is whether their presence is temporary.  As evidence, petitioner submits a handwritten, unsworn note from his mother indicating that petitioner has resided with him since early December 2024 “to help [her] with rehabilitation following some health issues.”  She further asserts that petitioner “lost the use of his automobiles” and has had to use her vehicle.  While providing medical assistance to a family member or lack of a vehicle could excuse a temporary absence from one’s residence, petitioner presents no evidence of his continuing ties to the community or efforts to return to the district.  In this respect, petitioner merely states that he will reside at the out-of-district address “for a[n] … unknown length of time.”  As such, his “avowed intent to return to [the] district is insufficient to establish residency” (Appeal of Hayes, 64 Ed Dept Rep, Decision No. 18,482). 

Moreover, petitioner and the student’s mother have provided multiple, inconsistent explanations of their living arrangements.  Given this, respondent reasonably declined to credit petitioner’s explanation of his living circumstances.  The Commissioner will not substitute her judgment for that of local school officials on matters of credibility unless there is clear and convincing evidence that such determination was inconsistent with the facts (Appeal of J.M., 62 Ed Dept Rep, Decision No. 18,192; Appeal of Students with Disabilities, 59 id., Decision No. 17,687; Appeal of K.M. and T.M., 56 id., Decision No. 17,095).  There is no evidence in the record, let alone clear and convincing evidence, that contradicts respondent’s credibility determination.  As such, I find that petitioner has failed to meet his burden of proving that he is temporarily residing at the out-of-district address (Appeal of J.M., 62 Ed Dept Rep, Decision No. 18,192; Appeal of Rahimi, 61 id., Decision No. 18,044; see Appeal of L.B., 54 Ed Dept Rep, Decision No. 16,672).

THE APPEAL IS DISMISSED.

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