MILLS, Commissioner.--Petitioners appeal a determination of the Cleveland Hill Union Free School District ("respondent") that their children are not residents of the school district. The appeal must be sustained in part.

Petitioner Johnson is the father of Nick Johnson, Jr., and Nickia Johnson. Petitioner Serrano is the mother of Damon Washington, Dorian Washington, and Kevin Washington. All five children were enrolled in respondent’s schools, for the 1999-2000 school year. In September 1999 a school district employee, reviewing student registration documents, noted that petitioners had listed their address as 69 Hillsboro Road. The employee lived near that address, was familiar with it, and informed the district’s superintendent that no children resided there. This information precipitated the district’s investigation of petitioners’ residency. To that end the superintendent hired an investigator who conducted surveillance at the Hillsboro Road address. Observing no children at the address, the investigator did further research and found petitioners and their children residing outside of the district at 661 LaSalle Avenue, in Buffalo. Petitioner Johnson is listed as the owner of that property.

By letters dated October 8, 1999, petitioners were notified that their children were not district residents, and that they would be excluded from attendance in the district effective October 15, 1999. The letter also informed petitioners that they would be given an opportunity to submit information concerning their children’s right to attend school in the district, and of their right to appeal this decision to the Commissioner of Education. In response to this notice, petitioner Johnson contacted the superintendent to inform her that he, petitioner Serrano, and all five children would be moving from 661 LaSalle Avenue, to an apartment within the district at 45 B Windwood Court. At this time neither petitioner offered any proof of residency in the district. By letter dated October 20, 1999, the superintendent again notified petitioners of respondent’s determination of non-residency. In response to this letter, petitioner Johnson submitted to respondent a lease agreement executed on October 18, 1999, commencing on December 1, 1999, for an apartment located in the district at 45 B Windwood Court, Cheektowaga, New York. After reviewing this lease, respondent allowed the five children to re-register at its schools.

Respondent continued to have concerns about the legitimacy of petitioners’ residency claims, and continued its surveillance of petitioners. While respondent’s investigator reported some activity by petitioners at the 45 B Windwood Court address, they were also observed outside the district at 661 LaSalle Avenue on weekends, holidays and some school nights. Based upon this investigation, respondents again concluded that petitioners and their children were not district residents. By letter dated November 19, 1999 petitioners were again notified of respondent’s determination of non-residency. This appeal ensued. Respondent agreed to allow petitioners’ children to remain in its schools until the end of the 1999-2000 school year.

Petitioners contend that they are planning to move into a residence within the district at 45 B Windwood Court. Petitioner Johnson claims that he is trying to sell his house at 661 LaSalle Street, and until the house is sold he and petitioner Serrano intend to spend weekends at that address.

Respondent claims that petitioners have not established a residence in the district. Based upon its investigations, respondent contends that petitioners and their children are living at 661 LaSalle Avenue, not at 45 B Windwood Court. Respondent also claims that petitioner Johnson has attempted to use other addresses in the past in order to provide a basis for his son to attend district schools.

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 to students whose parents or legal guardians reside within the district (Appeal of D.F., 39 Ed Dept Rep 106, Decision No. 14,187; Appeal of Dimbo, 38 id. 233, Decision No. 14,023; Appeal of Daniels, 37 id. 557, Decision No. 13,926). Residency, for purposes of Education Law "3202, is established based upon two factors: physical presence as an inhabitant within the district, and an intent to reside in the district (Appeal of Dimbo, supra; Appeal of Daniels, supra;Appeal of Anand, 35 Ed Dept Rep 65, Decision No. 13,466). A child’s residence is presumed to be that of his or her parent or legal guardian (Appeal of Samuel, 39 Ed Dept Rep 94, Decision No. 14,183; Appeal of Bogetti, 38 id. 199, Decision No. 14,014; Appeal of Simond, 36 id. 117, Decision No. 13,675). While such presumption may be rebutted, such rebuttal must be supported by evidence to the effect that there has been a total and presumably permanent transfer of custody and control to someone residing within the district (Appeal of White, 39 Ed Dept Rep 103, Decision No. 14,186; Appeal of Brown, 38 id. 159, Decision No. 14,007; Appeal of Mitchem, 37 id. 257, Decision No. 13,849).

Petitioner Serrano has presented no evidence that she or her children are residents of the district, other than her bare statements that she intends to reside at 45 B Windwood Court. Without any evidence of residency I cannot sustain petitioner Serrano’s assertion that she and her children live in respondent’s district. Her name is not on the lease for the 45 B Windwood Court apartment, and there is nothing in the record explaining her relationship to petitioner Johnson, other than, "family friend." Likewise, the record reveals no information regarding any legal basis for petitioner Johnson to assert any right on petitioner Serrano’s behalf or to exercise any authority over her children. In view of petitioner Serrano’s failure to produce any evidence to support her claim of residency within respondent’s district, I do not find respondent’s determination arbitrary, capricious or unreasonable and am compelled to dismiss her appeal.

Petitioner Johnson has submitted a lease in his name for the rental of an apartment at 45 B Windwood Court within respondent’s district. The lease was executed on October 18, 1999. However, the term of the lease did not commence until December 1, 1999. Respondent accepted this lease as evidence of petitioner Johnson’s residency, and allowed his children to re-register in its schools. It is apparent from the reports of respondent’s investigator that during November 1999 petitioner Johnson and his children were occasionally present at the 45 B Windwood Court apartment. Petitioner Johnson also informed respondent that he owned the house at 661 LaSalle Avenue, was trying to sell it, and that he and his family would be there on weekends until the property was sold. Although respondent conducted surveillance of petitioners on six occasions in October and eight occasions in November, petitioner Johnson’s lease did not entitle him to occupy the 45 B Windwood Court apartment until December 1, 1999. Under these circumstances, I question the relevance of respondent’s surveillance conducted during this time period. Respondent’s investigations actually revealed that petitioner Johnson’s car was parked at the 45 B Windwood Court apartment on at least one night in November. Additionally, respondent’s investigators discovered that petitioner Johnson had filed a change of address form with the U. S. Post Office on November 22, 1999 indicating his new address as 45 B Windwood Court.

As petitioner Johnson’s lease was not technically in effect until December 1, 1999, it is possible that he and his children were living at 661 LaSalle Avenue while in the process of moving into 45 B Windwood Court during November. Respondent produces no evidence of petitioner Johnson’s residence after December 1, 1999, the date the lease commenced. Petitioner Johnson’s assertion of residency is supported by his production of a valid lease and affirmative effort to change his mailing address. In light of respondent’s lack of evidence to the contrary, I cannot find that respondent acted reasonably, and petitioner Johnson’s appeal must be sustained.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent Cleveland Hill Union Free School District admit petitioner Johnson’s children to its schools without the payment of tuition.

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