Decision No. 12,776

(August 5, 1992)

 

Edelstein & Brown, Esqs., attorneys for petitioner, Saul Edelstein, Esq., of counsel

Jaspan, Ginsberg, Schlesinger, Silverman, & Hoffman, Esqs., attorneys for respondent, Lawrence Tenenbaum, Esq., of counsel

SOBOL, Commissioner.--Petitioner, on behalf of his two sons, appeals from respondent's determination that the students are not residents of the Lawrence Union Free School District and, consequently, cannot attend its schools tuition free. The appeal must be sustained.

Pursuant to a 1983 judgment of divorce, petitioner was awarded custody of his two sons and was given exclusive possession of the marital residence, located in respondent's district. Petitioner did not ask his former wife to leave the marital residence after the divorce judgment. Subsequently, petitioner's former wife moved to vacate the 1983 judgment. Petitioner, apparently upon the request of his former wife that he leave the marital residence, moved to an apartment located in another school district. Petitioner alleges that his residency there is temporary, pending the court's determination of the dispute over the marital residence. As proof, petitioner alleges that he has no lease, pays no utility bills or rent, and that he does not intend by such move to change his domicile. Petitioner further contends that, although he has legal custody of the children, both he and his former wife share significant time with the children at both the marital residence and petitioner's apartment. In addition, petitioner alleges that, pursuant to court order, both parents share day-to-day responsibility for their children including educational responsibility. In fact, the divorce decree indicates that decisions regarding the education of the children should be jointly made.

On October 28, 1991, respondent's assistant superintendent conducted a hearing and, in a decision dated November 15, 1991, found that petitioner's sons were not bona fide residents of respondent's district based upon their temporary residence in petitioner's apartment located in another school district. Petitioner then appealed the decision to respondent. On December 20, 1991, the president of the board of education denied petitioner's appeal. Petitioner commenced this appeal on January 16, 1992 and requested a stay pursuant to 8 NYCRR '276.1. On January 30, 1992, I issued an order requiring respondent to continue to admit petitioner's sons to its schools, pending a final decision on the merits.

Under Education Law '3202(1) a child is entitled to attend school in the district "in which such person resides without the payment of tuition." Where a child's parents are divorced and a court awards custody of the child to one parent, the child's residence is presumed to be that of the custodial parent, although such presumption is rebuttable (Appeal of Forde, 29 Ed Dept Rep 359). A residence is not lost until another residence is established through both intent and action expressing that intent (Appeal of Woodward, 27 Ed Dept Rep 442). The record before me indicates that petitioner, while voluntarily removing himself and his two sons from the marital residence located in respondent's district, has done so only temporarily pending the court's determination of the dispute over the marital residence. The temporary nature of petitioner's occupancy of the apartment located in another school district is supported by the fact that petitioner has no lease and pays no utility bills or rent and petitioner's statement that he does not intend by such move to change his domicile and that he will either return to the marital residence, if authorized by the court, or, if not, that he will immediately make other arrangements to establish another residence in respondent's district. The evidence before me is insufficient to establish that petitioner or his sons have abandoned or intend to abandon their residence in respondent's district or that they intend to become residents of another school district (Matter of Stewart, 21 Ed Dept Rep 160). Accordingly, I find that petitioner and his sons continue to be legal residents of respondent's school district.

THE APPEAL IS SUSTAINED.

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