Appeal of M.S., on behalf of his child, from action of the Board of Education of the Syosset Central School District regarding residency.

Decision No. 18,627

(August 11, 2025)

Ingerman Smith, L.L.P., attorneys for respondent, Michael G. McAlvin, Esq., of counsel

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

The student has attended school in the district since 2018.  In or about spring 2024, respondent received information suggesting that the student resided outside of the district in Huntington Station, New York (the “out-of-district address”).  The district proceeded to surveil the out-of-district address on six dates in September 2024.  On several of these days, the investigator observed an adult male depart the out-of-district address with the student.

By letter dated October 10, 2024, respondent’s executive director of human resources (“director”) informed petitioner that, based on the surveillance, she had determined that the student was not a resident of the district and would be excluded from school as of October 22, 2024.  Petitioner and the director met to discuss the factual basis for the district’s determination on October 18, 2024.  At this meeting, petitioner asserted that he and his wife were going through a divorce and living separately.

By letter to petitioner dated October 21, 2024, respondent determined that the student was not a district resident.  Thereafter, by letter dated October 23, 2024, petitioner asserted that the student was now “back to living” with petitioner in the in-district address.  Based on this representation, respondent allowed the student to remain enrolled in the district.

Respondent conducted six additional days of surveillance in December 2024.  On three of these mornings, the investigator observed an adult male depart from the out-of-district address and drop the student off at school.  On two occasions, investigators observed a “teenage male” depart the in-district address and board a school bus.  No activity was otherwise observed at the in-district address.[1]

By letter dated January 16, 2025, respondent determined that the student was not a district resident.  This appeal ensued.  Petitioner’s request for interim relief was granted on February 11, 2025.

Petitioner asserts that he and the student reside at the in-district address.  While he acknowledges that the student temporarily resided outside of the district due to family instability in September 2024, he asserts that the student thereafter returned to the in-district address.  He seeks a determination that the student is a district resident.

Respondent, relying primarily on surveillance evidence, contends that the student resides at the out-of-district address.

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).

Where a child’s parents live apart, the child can have only one legal residence (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Helms, 36 id. 95, Decision No. 13,668).  In cases where parents have joint custody and the child’s time is essentially divided between the parents’ respective households, the parents may designate the child’s residence for purposes of Education Law § 3202 (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of T.P., 45 id. 156, Decision No. 15,288; Appeal of T.K., 43 id. 103, Decision No. 14,935; Appeal of Cortes, 37 id. 114, Decision No. 13,818).  However, in the absence of proof that the child’s time is indeed divided between both households, the child’s residency must be determined by the traditional test requiring physical presence in the district and intent to remain (Appeal of S.L., 57 Ed Dept Rep, Decision No. 17,187; Appeal of Rousseau, 45 id. 567, Decision No. 15,418).

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 and the burden of establishing the facts upon which the petitioner seeks relief (Appeal of Powell, 57 Ed Dept Rep, Decision No. 17,320; Appeal of White, 48 id. 295, Decision No. 15,863).

In support of his claim of residency, petitioner submits utility bills for the month of January 2025, a corrected change of address notice from the post office dated October 20, 2024, car insurance and registration renewal from January 2025, his driver’s license, and various letters bearing his name and the in-district address. 

This documentary evidence is unpersuasive when weighed against respondent’s surveillance evidence (see Appeal of Mauro, 58 Ed Dept Rep, Decision No. 17,494; Appeal of Brown, 54 id., Decision No. 16,644; Appeal of Gay, 54 id., Decision No. 16,636).  The student was frequently observed leaving from the out-of-district address in December 2024, approximately two months after petitioner indicated that he and the student had returned to living in the district.[2]  To the extent petitioner suggests that the student was the teenager observed at the in-district address on two of the six days of surveillance, this is belied by respondent’s surveillance evidence.  On December 13, 2024, two investigators separately observed the teenager and the student departing the in- and out-of-district addresses.  Petitioner does not contest that respondent’s photographs accurately portray the student.  Thus, I am unpersuaded by petitioner’s argument that the student was the “teenage male” observed at the in-district address.  Consequently, respondent’s determination cannot be considered arbitrary or capricious.[3] 

THE APPEAL IS DISMISSED.

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