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Attorney Deborah G. Stevenson, Executive Director

 

Bulletin #71     Homeschooling And Divorce     09/02/09

 

Did you know that there is a not so new threat to homeschooling?  It’s called a decision by divorce court.

 

Recently, there have been increasing numbers of reports about courts ordering homeschooled children to attend public school.  In virtually all of these publicized cases, the order has been the result of a divorce dispute.

 

Upon hearing that a court has ordered a homeschooled child to attend public school, the first thought that might cross your mind is that the Constitutional right of the parent to the upbringing and education of the child is being violated.  While that may be true in some cases, before you reach that conclusion, it would be wise to understand all of the facts.

 

While it is true that the United States Supreme Court, in several well-known cases such as Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925); Wisconsin v. Yoder, 406 U.S. 205, 232 (1972), and the like, has found that parents do have a Constitutional right to the upbringing and education of their children, the Court also said, within those decisions, that the state has the right to regulate homeschooling.  

 

 In addition, the state, through the courts, also has the right to resolve disputes between parents during a divorce.  In fact, during a divorce, when parents cannot come to an agreement between themselves, the parents actually voluntarily grant authority to the state court the right to decide all aspects of the upbringing and education of the child.  Essentially, to a certain extent, they waive their Constitutional right and cede authority to the state court.

 

The state court has a difficult task in these cases because both parents, equally, have the Constitutional right to the upbringing and education of their children.  Inevitably, the court must choose to uphold the rights of one parent over the rights of the other. Moreover, the state court believes it has the duty to determine cases involving children utilizing a standard called, the “best interest of the child”, a wholly subjective standard based upon what the court believes to be the “best interest of the child” after reviewing the facts presented by the parties.

 

Other factors also come into play in a state court’s decision.  For example, the court may consider the psychological, emotional, and social condition of the child; how the child is being cared for by each parent; how the child has been educated by each parent; and the effect on the child of the care or education provided.

 

Economic factors also come into play in divorce proceedings.  For example, one parent may request the court to order the child to attend public school because that parent wants the other parent to return to work so the first parent does not have to pay as much in alimony or child support. 

 

Then there is the psychological, social, emotional, and intellectual condition of the judge, the social workers, the guardians ad litem, and the psychologists involved in the case. Whether or not these players have been indoctrinated by their own education and training plays a major role in the decision making process.  For example, have they been taught to believe that globalization, or diversity of thought inculcated by same age peers is superior to pursuit of individual goals in the context of a small but strong family and community environment, or vice versa?  Have they been taught, academically or by practice, that behavioral modification of children should be the norm, or that parents who are closely involved with their children are “enmeshed” with them, and that “enmeshment” somehow equals abuse and neglect? 

 

Amidst all of the facts presented, and the subjective interpretation of them by the parties, the witnesses, and the court, when it comes to what to do about the children, the court usually falls back on the doctrine of “the best interest of the child” in making its decision.    While courts may be obligated by precedent or practice to consider the “best interest of the child”, the courts also must abide by the Constitution and by the rule of law.  More often than not, this presents a formidable balancing act.  The question remains, however, which should trump – the state’s view of the “best interest of the child”, or the parent’s Constitutional right and the rule of law?

 

Because the Supreme Court has determined that the right of the parent to the upbringing and education of the child is a fundamental Constitutional right, the state may interfere with that right only when it can prove that there is a compelling state interest.

 

When you read stories in which a court has decided that a homeschooled child should attend a public school, these factors must be considered. Often the factors that are most crucial to understanding the basis of the court’s decision are not included in news reports, making it very difficult for readers to determine whether to support or oppose the action of the court.

 

 If the court did not cite in its decision that there was a compelling state interest in interfering with the fundamental Constitutional right of the parent to the upbringing and education of the child, and it is clear from the facts in the record that the parent’s fundamental right was infringed, then the case is ripe for appeal, and ripe for righteous indignation on the part of the party harmed and on the part of members of the public supporting that party.  Keep in mind, however, when reading news reports, that there may be more facts that are highly relevant to the decision that are missing from that report.

 

Still, it may be very important to express vocal opposition to a court decision that appears to infringe on someone’s fundamental Constitutional right. Although, if that opposition assists in having the Supreme Court accept a petition for certification to appeal that decision, keep in mind that the judges on the Supreme Court are all political appointees, and all have their own biases and subjective opinions that undoubtedly will play a role in their decision.

 

No doubt, we will hear more and more stories about courts ordering homeschooled children to attend school, as more and more people homeschool their children, and statistically more and more people divorce.   The only real way for divorcing parents to avoid court decisions ordering homeschooled children to attend public school is to agree between themselves about the education of the children, or to enter into mediation to reach such an agreement.  Any time anyone goes to court during a divorce, remember, they are voluntarily granting the authority to the court to decide the fate of those children.

 

 

www.nheld.com

Attorney Deborah Stevenson - Executive Director of National Home Education Legal Defense – email : info@nheld.com

Judy Aron - Director of Research, NHELD – imjfaron@sbcglobal.net