MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Elmont Union Free School District ("respondent") to exclude his children, Daniel and Shawn, on the basis of residency. The appeal must be sustained.

By letter dated December 11, 1997, respondent's superintendent informed petitioner that his sons, Daniel and Shawn, ages 10 and 8, were illegally registered in the Elmont Union Free School District because petitioner -- their legal guardian -- resided at 105-30 134^th Street, Richmond Hill, Queens. Respondent affirmed the superintendent's determination on January 20, 1998. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was granted on February 10, 1998.

Petitioner maintains that since approximately February 1992, he and his children have lived with his parents at 85 Wellington Road, Elmont, within respondent's school district. In support of his claim, petitioner provides his driver's license, his library card, correspondence addressed to him from the Franklin Hospital Medical Center, the Internal Revenue Service, and the Nassau County Department of Social Services, and letters written by his pastor, two neighbors, and Michelle Campbell -- petitioner's girlfriend -- who resides at 105-30 134th Street, Richmond Hill.

Respondent alleges that between September and December 1997, Daniel told his teacher that his father lived with his girlfriend in Queens and that he and his brother spent several nights a week there. Respondent reports that petitioner and his children were observed staying at the Queens residence on the night of December 11, 1997. Respondent also alleges that Shawn gave his teacher a number with a 718 area code as his father's telephone number. Respondent contends that when that number was called, the woman who answered identified herself as Michelle Campbell and gave her address as 105-30 134^th Street, Richmond Hill. During a second phone call, purportedly to verify petitioner's address in order to deliver a package, Ms. Campbell allegedly indicated that petitioner also lived there.

Petitioner contends that from September through December 1997, his father was terminally ill, that his girlfriend, Michelle Campbell, helped care for his sons, and that he and his sons occasionally spent the night at her apartment in Richmond Hill. He also contends that he gave his children her phone number to use in the case of an emergency because he was busy caring for his father.

Education Law ' 3202(1) provides in pertinent part:

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education only to district residents (Appeal of Allen, 35 Ed Dept Rep 112; Appeal of Warburton, 35 id. 74). A child's residence is presumed to be that of his parents or legal guardian (Appeal of Plesko, 37 Ed Dept Rep 238; Appeal of Keenan, 36 id. 6). Therefore, Daniel and Shawn are presumed to reside with petitioner, and the issue here is whether petitioner resides in respondent's school district.

For the purposes of Education Law ' 3202, a person can have only one legal residence (Appeal of Somma, 36 Ed Dept Rep 51; Appeal of Britton, 33 id. 198). Residence is established based upon two factors: physical presence as an inhabitant within the district (Vaughn, et al. v. Board of Educ., 64 Misc. 2d 60; Appeal of Anand, 35 Ed Dept Rep 65) and an intent to reside in the district (Appeal of Anand, supra; Appeal of Varghese, 34 Ed Dept Rep 455). A residence is not lost until it is abandoned and another is established through action and intent (Appeal of Somma, supra; Appeal of Britton, supra). Respondent discounts petitioner's proof of residence. It claims that a driver's license and library card can easily be obtained with a false address. It argues that the letters have no probative value, specifically that the letter from Reverend Mathew Kottaram states that petitioner and his children live at 85 Wellington Road "as far as I know," that the letter from a next-door neighbor refers to the children's frequent presence, but not to that of petitioner, and that a letter from another neighbor gives no basis for its content.

Respondent, however, fails to provide any persuasive evidence that petitioner does not live in respondent's school district or that he does indeed reside at the Richmond Hill address. Respondent alleges and petitioner admits that he and his children have stayed overnight at Ms. Campbell's residence. However, evidence that an individual stays overnight at his girlfriend's house does not demonstrate that he has changed his residence (Appeal of Gibson, 31 Ed Dept Rep 284). Similarly, respondent alleges that Shawn gave Ms. Campbell's phone number as that of his father's. This too fails to demonstrate a change in residence. Petitioner explains that he gave his sons Ms. Campbell's number to call in case of an emergency because he was busy caring for his father. Respondent also relies on Ms. Campbell's alleged statement that petitioner lived at the Richmond Hill address. Petitioner provided a written statement from Ms. Campbell denying that petitioner lives there. Even if I were not to credit her later written statement, Ms. Campbell's statement over the phone that petitioner lived there for the purpose of accepting a package is not sufficient grounds for removing petitioner's children from school.

Based upon these facts, I find respondent's evidence insufficient to support its determination. Given petitioner's evidence of residence in respondent's school district, and respondent's lack of proof to the contrary, I conclude that respondent's decision to exclude petitioner's children is arbitrary, capricious, and an abuse of discretion. Accordingly, it will be set aside.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent allow Daniel and Shawn Powe to attend school in the Elmont Union Free School District without the payment of tuition.

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