Editor's Note: This article originally appeared in the Fall 2011 issue of The Old Schoolhouse® Magazine, the trade magazine for homeschool families. Read the magazine free at www.TOSMagazine.com or read it on the go and download the free apps at www.TOSApps.com to read the magazine on your mobile devices.

Divorce is ugly. Two people sever the emotional and physical ties that held them together in the most intimate of bonds. Their kids are left confused and angry. Some parents might even use their children as pawns to spite a former spouse. Family courts intrude, dividing property and custody rights. In paternity or child custody hearings, parents who never married experience similar ordeals. But what happens when these “non-couples” disagree about homeschooling? Some, like Brenda Kurowski, learn the hard way that family courts can step in and force their children to enroll in public school.

Brenda and Martin Kurowski divorced in Massachusetts after the birth of their daughter, Amanda. The divorce court awarded them joint child custody, and Amanda moved with her mother to New Hampshire. But when Brenda decided to homeschool Amanda during first grade, her ex-husband went to court to stop the home education.

During a hearing, the judge voiced concern about Amanda’s strong Christian faith and her “vigorous defense” of that faith to her court-appointed counselor. In the judge’s opinion, the 10-year-old Amanda had “not had the opportunity to seriously consider any other point of view.” Despite her successful homeschooling from first through fourth grade, Amanda was ordered into public school for the 2009–2010 school year; the judge felt she needed socialization. Brenda appealed that decision, but the New Hampshire Supreme Court upheld the ruling in March 2011 as being within the proper discretion of the judge in the context of a dispute between two divorced parents with equal rights.  

The Kurowskicase is not unique. Similar scenarios can happen whenever homeschooling families split up. If one parent objects to home education, the judge might order the child into public school. Acting as referee, the court will choose what is in the “best interests of the child.” But how does a judge decide which schooling is best? And is there anything the “teacher-parent” can do to preserve the right to homeschool? A review of homeschool custody cases reveals five factors parents need to understand, especially if they are not married to their child’s “other” parent.1

1.The Custody Factor

The natural starting place for a family court will be to read the custody decree, if one already exists. Married couples share a “bundle of rights” over their children, including the power to make medical and educational choices. At divorce or in any initial custody dispute, a court splits those rights between the parents, based on the best interests of the child. This decree grants one parent sole legal custody of the children, or it divides custody between the parents. And once that decision is made, the court will not modify it unless there is a significant change of circumstances. This initial grant of custody is the decisive moment for parents who hope to homeschool later.

In many states, the parent with solelegal custody of the child has wide discretion to direct the child’s education. As a Tennessee court put it in Rust v. Rust, a decree of sole legal custody “creates a new family unit” that should be treated like “an intact, two-parent family.” In other words, the parent with sole legal custody should be allowed to homeschool despite the non-custodial parent’s objections. But this is not the rule in every state.