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.

In a joint legal custody case where parents are deadlocked about education—like Amanda’s family in Kurowski—the odds are less favorable for the homeschooling parent. A judge cannot simply defer to one person’s homeschooling decision, since both parents have an equal say in their child’s education. The “best interests” will prevail. Notably, in the wake of the “fathers’ rights” movement, joint legal custody decrees have become the norm in many states.

Parents wishing to teach at home should avoid joint custody arrangements during divorce or at any child custody hearing. If that is not possible, they should seek a custody agreement that expressly gives the homeschooling parent the right to make educational decisions for the child. A single sentence in the decree could save years of heartache later.

2. The Education Factor

Quality of education, both at public school and at home, is the next major factor. Divorced, unwed, or re-married homeschooling parents must be vigilant in choosing curricula and in record-keeping, because one day these parents might need to show a family court that their education program is academically sound. They also will need expert witnesses who can testify that homeschooling, in general, is an exceptional way to teach. There is plenty of data to support that position.

Modern homeschooling originated with “educational progressives” who believed traditional schools were intellectually stifling. Raymond Moore’s famous study in the 1960s showed that children can learn more in a few hours’ time with a tutor than they can learn in a group setting for an entire day. This truth has been confirmed by the statistics since the 1980s. Comparisons of standardized tests—such as the college admissions Scholastic Aptitude Test (SAT) and the Iowa Test of Basic Skills (ITBS)—reveal that homeschoolers score significantly higher than their public school counterparts. They also have greater college acceptance rates and often do better in the university setting.

Unfortunately, some judges have preconceived notions about the quality of home education. Regardless of the statistics, some still believe that parents without a college education are “unqualified” to teach their children. That is why expert witnesses are so important. In Carrano v. Dennison,after hearing extensive expert testimony, a Connecticut court allowed a divorced mother to homeschool. The judge concluded that home education “can be a rich and diversified experience, and one that is uniquely tailor-made for the child.”

3. The Socialization Factor

Family courts are concerned about child socialization in homeschooling. Some judges assume that group education with peers is needed for “proper” social development. In the Kurowski case, for instance, the judge stated, “Enrollment in public school will provide Amanda with an increased opportunity for group learning, group interaction, social problem solving, and exposure to a variety of points of view.” But is that actually the case?

Homeschooling experts argue that harmful peer pressure in public schools can result in negativesocialization. And some studies conclude that adult interaction is equally as important as peer contact. Indeed, taking children out of public school can provide them with healthier socialization from a wider age group.

Homeschooling parents should take socialization into account when making their education plan. They should get kids involved in extracurricular activities, such as sports, music, and youth groups. As Samantha Lebeda writes in the Journal of Contemporary Legal Issues, these activities “teach children how to be productive in relationships and . . . may offer enough or even more than enough peer contact.”

Divorced, unwed, or re-married homeschoolers who give their kids a healthy amount of social contact are better positioned to win their cases in family court. For example, in Brown v. Brown, a Virginia court allowed a father to homeschool, over the objection of his ex-wife. He presented credible expert testimony at the hearing and convinced the judge that his children “engaged in sufficient activities outside the home classroom to develop necessary social skills.”

4. The “Parental Strife” Factor

Family court judges worry about the impact of parental conflict on children. A court might forbid homeschooling if it believes teaching at home will harm the other parent’s rights. In Taylor v. Taylor, a Michigan court decided a case where the divorced parents’ interactions had fully deteriorated; they could not even discuss their child. The judge believed homeschooling would “excise” the father from his child’s education due to this failure to communicate. The court ordered the child into public school. In another case, Clark v. Reiss, an Arkansas court prevented a divorced mother from homeschooling because it would have required a modification to the father’s visitation schedule. The court wanted to protect the father’s rights with his child.

Judges are more receptive to homeschooling where parents do not exclude each other from home education. For instance, the Browncourt praisedthe homeschooling father for his efforts to keep his ex-wife informed of her child’s educational progress and for agreeing that she could come to class on occasion. The judge felt this openness to the mother’s participation would make homeschooling possible without harming her rights. This case illustrates the benefits of avoiding parental strife over homeschooling and of allowing parental access.

5. The Religion Factor

Finally, religion can become controversial in some homeschool custody cases. Though it may seem unfair, religious parents must be ready to show the judge that their faith is not harmful to child development. Over the years, judges have struggled to balance the proper role of religion in determining custody. The problem becomes even thornier when a divorced, unwed, or re-married “religious” parent wishes to homeschool. A judge who disapproves of the parent’s religious practices might assign education decisions to the other parent. That is one argument Brenda made in the Kurowskicase;other parents have experienced similar problems.

In Snider v. Mashburn, an Alabama court clearly disliked the religious zeal of a Baptist homeschooling mother. The court first stripped custody from her and gave it to her ex-husband, who had more “liberal” religious views. The judge went on to issue a gag order: during visitation time with her daughter, the mother was forbidden from providing “any religious training . . . which would otherwise be disparaging or critical of in any way the beliefs of the Father.”

Similarly, in In re Marriage of Epperson, a Montana court granted the “less-religious” father sole legal custody of his children instead of the homeschooling mother. The court mocked the religion of the parents, who belonged to the Tridentine Catholic order, an offshoot of Roman Catholicism. The judge described them as “isolated religious fundamentalists,” and said their “off beat” religion had some “screwball aspects.” The judge commended the father for being less “inflexible” in his religion, while denouncing the mother for being more interested in “indoctrination” than education.

This is a controversial area where fundamental rights are at stake and where parents must beware of judicial prejudices. Does the judge disapprove of certain religious practices? Does the judge view “religious intolerance” as harmful to the child? When religion becomes an issue, homeschooling parents need to show the court that their faith will not harm their child’s development.

Today’s complex romantic relationships have created many varieties of “non-couples,” whether unwed, divorced, or re-married. As Brenda Kurowski discovered, these parents are at risk to lose their right to homeschool. Luckily, they are not alone in this fight. There are homeschool organizations and legal defense groups that may be able to help. And with an understanding of the five factors discussed in this article, these parents can reduce the risk to their homeschool by making sure their child’s education program is legally defensible.

Antony B. Kolenc (J.D., University of Florida College of Law) is an attorney, author, and speaker. He and his wife have homeschooled their five children for over a decade. He is author of The Chronicles of Xanhistorical fiction trilogy, as well as several legal articles. Learn more about him at www.anthonykolenc.com.

Endnote:

1. Laws governing homeschooling, divorce, and child custody vary from state to state. Be sure to check with local and state homeschool organizations for your own state’s rules. You can also access your state’s laws on websites such as FindLaw (/www.findlaw.com/casecode/).

List of Referenced Cases:

Brown v. Brown, 518 S.E. 2d 336 (Va. Ct. App. 1999).

Carrano v. Dennison, 30 Conn. L. Rptr. 479 (Conn. Sup. Ct., 2001).

Clark v. Reiss, 831 SW. 2d 622 (Ark. Ct. App. 1992).

In re Matter of Epperson, 107 P. 3d 1268 (Mont. 2005).

In the Matter of Martin Kurowski and Brenda (Kurowski) Voydatch, Case No. 2006-M-669 (N.H. Laconia Family Division, Belknap County, 2009).

Rust v. Rust, 864 S.W. 2d 52, 55 (Tenn. Ct. App. 1993).

Snider v. Mashburn, 929 So. 2d 447 (Ala. 2005).

Taylor v. Taylor, 758 N.W. 2d 243 (Mich. 2008).

Publication date: July 12, 2012