A Not-So-New Threat to Homeschooling

Homeschooling and Divorce

Articles by Attorney Deborah G. Stevenson and Melanie Young, NCHE 

Divorce and Homeschooling

– By Attorney Deborah G. Stevenson, NHELD Executive DirectorPublished September 2, 2009, in NHELD Bulletin #71.

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.
Attorney Deborah Stevenson – Executive Director of National Home Education Legal Defense – e-mail:
Judy Aron – Director of Research, 

For situations regarding child abuse, spousal abuse, or domestic violence, see Child Protection Policy.

Letter to an Anonymous Homeschool Mom Considering Divorce

– By Melanie Young, NCHE (North Carolinians for Home Education)

Dear Anonymous,

I wish I could give you a hug! I’m so glad you asked for help instead of going to a lawyer!!!!! I believe God will intervene in this situation!

Now for the tough love part: a real, practical, earthly reality check. We are state homeschool leaders and sooner or later, many problems in the homeschool community in our state cross our desk. We see a lot of divorce situations! How in the world, you’re probably thinking, would a divorce affect homeschool leaders? Here’s the reality check: when you divorce, you are telling the state that you can no longer run your own family, that the adults in the marriage are no longer in agreement, so can not be allowed to make decisions about the children. When you do this, the family judge has — hear me — **complete authority** over your family. Most family judges are older people who are ignorant about homeschooling and they will jump on the slightest excuse to *order* you to place your children in public school. Now, I know that there are exceptions to this, but you can’t decide what judge your case comes before. Our state homeschool board members and those in other states will testify if asked, but generally, it is to no avail. And HSLDA will not help you in custody situations, even if homeschooling is the issue.

Now, you may think that you and your husband are in agreement about homeschooling, but when it comes to a divorce, *anything* can be used as a weapon. When someone is cut to the quick — and tearing apart a one-flesh relationship definitely does this — he can react like a wounded animal. We see parents reporting each other to social services, calling the state oversight agency and making complaints, asking the judge to give them total custody, asking the judge to stop the homeschooling. We see this a lot because the hurt or angry mate knows how important this is to his wife. Often these are Christian homeschooling families that no one ever thought would be in this situation.

Even if you can possibly get through the judicial situation, you are not done with your husband. When a couple with children divorces, I think they seldom realize that they will be tied to each other forever through the children and courts. One of my dear, homeschool-mom friends is allowed to homeschool, but her husband has custody every weekend (and if it is a situation where no one has done anything wrong, 50/50 custody is the norm), so she almost never gets to go to church with her son, never gets to relax on a Saturday with him. Every other holiday is alone. He is gone a lot of the summer to make up for the five days she has him to every two his father does during the week. This, if you can believe it, is one of the best situations I know — not much of a best, is it?

I cannot emphasize strongly enough that nothing short of a real, physical, abusive situation or unrepentant adultery is even close to worth submitting your family and the rest of your children’s childhood to the authority of a probably unsaved, probably hostile judge!

Trust me, we see a lot of tough situations, and divorce will not take away your problems; they will just become problems you are not allowed to change — court orders.

The next thing we see is moms who have gotten through all that and now they have to support themselves. Generally, judges will *not* order the husband to completely support the family as before since he sees no reason the wife should not work. And if you go to work, you can bet the judge will want to know who is supervising the children and not believe that you can homeschool, too. It’s a vicious cycle.

Now, there are people who get through divorce more easily than this, but can you take that chance?????? If Satan cares enough about wrecking your family to spend two years tempting you away from loving and respecting your husband, do you think he will stop when victory is in his grasp???

I’m not going to go into the spiritual and emotional rebuilding advice, because I think you are getting a lot of great help, except to say this — God would not command us to love one another if it wasn’t something we could choose to do and not something that comes and goes without our decision.

Dear friend, I really don’t want to see you go through this! You may even be in our state. I don’t want to have to see a judge take over your family. Please count the cost and ask God to restore your marriage.

With much love,
Melanie Young

For situations regarding child abusespousal abuse, or domestic violence, see Child Protection Policy.