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No Child Custody Preference for Public Schooling over Home Schooling:

Staub v. Staub, decided Tuesday by a Pennsylvania appellate court, holds that in child custody cases where the parents disagree about whether to send their children to public school or to home school them, there is to be no rule or presumption in favor of public schooling. "To the contrary, we hold that the well-established best interests standard, applied on a case by case basis, governs a court's decision regarding public schooling versus home schooling," without any presumption that one or the other is more in the child's best interests.

Related Posts (on one page):

  1. Home Schooling and Child Custody:
  2. Home Schooling as Factor in Child Custody Decisions:
  3. No Child Custody Preference for Public Schooling over Home Schooling:
Dilan Esper (mail) (www):
That seems right, given the right to control the education of one's children under Pierce v. Society of Sisters and Meyer v. Nebraska, as well as the free speech and (if religiously motivated) free exercise interests inherent in homeschooling.

As someone who has a very, very low opinion of homeschooling, I can't say I like the result on policy grounds. But the law's the law.
10.24.2008 10:25pm
Roger Schlafly (www):
Instead, the court applies a presumption that some silly family court judge knows better than the parents. There is no best interests of the child (BIOTCH) standard being applied here; the judge is just stating a preference based on his own prejudices.
10.24.2008 11:37pm
Nathan_M (mail):
Roger Schlafly - Forgive me if you've answered this before, but in a case like this, where one parent thought home-schooling was in the best interests of the children and the other thought public school was, how exactly would you propose the judge decide this case?
10.25.2008 12:02am
Nathan_M (mail):
Yikes, I went to public school and came up with that awkward sentence construction. Score one for home-schooling.
10.25.2008 12:04am
Oren:

the judge is just stating a preference based on his own prejudices.

Except in a case where he's holding that public schooling (you know, part of the socialist scheme of government he wants to foist upon you) ought not to be preferred. Sure.
10.25.2008 1:32am
Roger Schlafly (www):
I do not think that family court judges should have any jurisdiction over such issues. Schooling is the choice of the parents.
10.25.2008 1:36am
Soronel Haetir (mail):
Roger,

Sorry, but that is a cop out. Would you prefer abandoning the idea of shared legal custody? If both parents are going to have some claim to legal custody these sorts of issues are going to come up where the parents are unable to resolve the matter.
10.25.2008 1:51am
Gregory Conen (mail):
@Roger Schlafly:
And what about when parents disagree? That's when the judges usually get involved.
10.25.2008 1:52am
Nathan_M (mail):

I do not think that family court judges should have any jurisdiction over such issues. Schooling is the choice of the parents.

I don't really understand this. What cases like this where the parents disagree? (And that's really the only reason I can imagine a judge having to decide something like this.)

The only alternative I can think of is for the judge to grant sole custody to one parent, instead of awarding shared custody. But wouldn't that result in the court system having an even bigger impact in the childrens' lives? In this case the father and mother could talk about the issue, and then when they could not agree they each got a chance to argue their position in court. Isn't that preferable to saying one parent gets to decide everything; the other parent's wishes be damned?

I guess I don't see how declaring something is the choice of the parents works when the parents cannot agree on a choice.
10.25.2008 2:02am
unhyphenatedconservative (mail):
Does anyone know what Roger Schlafly's deal is on custody cases and the best interest standard? What is the story about the hard on he has for this issue?
10.25.2008 3:10am
Gregory Conen (mail):
Roger Schlafly recognizes that the "Child's best interest standard" essentially is the "whatever the judge feels like" standard. It's a golden opportunity for judicial control of personal lives, with now specific rationale.

Unfortunately, for some situations there's no good alternative.
10.25.2008 7:23am
eric (mail):
I agree with Roger's criticism of the best interests of the child standard but I know no viable alternative. The best interests of the child is an amorphous standard that, in at least 80% of cases could go either way. Therefore, the judge can apply whatever criterion they wish. In application, I think it leads to gender bias. Even if it does not, it is a standardless standard.
10.25.2008 9:13am
lecturerrich:
Dilan Esper:

As a homeschooling parent with a child that consistently achieves in the 95 percentile or better on various standardized tests and who knows a large number of homeschooled children, I am obviously biased. But, (yes I know sentence construction, I was not homeschooled :) the majority of the children do at least as well and usually much better than their peers in public school. Over the last several years the winner of the national spelling bee contest have often been homeschoolers. My understanding is that several Ivy League or other top schools actively seek homeschoolers, (Princeton, Harvard and I have heard MIT). Homeschoolers must be doing something right.
Personally, we started homeschooling when our local school, which is considered good, was failing our child in that she was bright and they could not accommodating her. So figured if they were not going to educate her we might as well.
10.25.2008 9:46am
pete (mail) (www):
The issue with homeschooling is that, like any other school, it is only as good as the teachers and students make it. I know several homeschooled students who did great in college, some of whom went on to get graduate degrees from well respected universities. I also have met some that are now adults and have about a 6th grade level of math skills because the parents were not good math teachers and gave up.

We are debating whether to homeschool our child and at this point it is dependent on which elementary school we can get him into. Our school district on the whole is awful and only graduates half of its students. But there are several individual schools that are very good within the district that have relatively open enrollment and if we can get our kids into those we will send them there.
10.25.2008 11:16am
loki13 (mail):
Roger, Eric et al.,

The saying of people who work in the courts is this:

In criminal law, you get to see bad people at their best.

In family law, you get to see good people at their worst.

During my own 'family law' experience, I observed the following- the judges were uniformly fair, almost overly so (if such a thing is possible). The lawyers were often the worst lawyers I had seen. Note that this is not a slam on all famlaw lawyers; merely an observation. While I could give specific examples, the problems were simple- too many low-quality lawyers attracted by too-little (relative) pay from the state; private lawyers in famlaw often have perverse incentives (think of divorces and billable hours). OTOH, I saw some very good lawyers- but overall, not so much. But the worst thing? The litigants. Whatever the event (divorce/TPR/shelter/domestic violence &TRO/support enforcement/dependency) the individuals involved were almost always, well, there for a reason.

And that's the problem. The law can be a blunt instrument. Families are a nuanced thing. Esp. in the case of a divorce, when the two parties are can't agree on things, and force the legal system to decide for them (or, worse, try to use the lgeal system as a weapon) bad things tend to happen all around while their lawyers rack up the billables. It's a zero sum game.

I once read through (no joke) a "Motion to Allow Teenage Son to Drive Car to Visitation". Two parents who had been involved in a long divorce and now "spoke" only through motions to the court. Don't like all this? Don't get divorced. Make it amicable. But reading these *whah* *whah* why are they (the overwhelmingly male judiciary, usually) using these "gender biased" standards and *whah* *whah* why are the evil judges interfering in my life comments? Next time- choose more wisely before you get married.

Anyway, that's why I went corporate.
10.25.2008 11:38am
Oren:
Roger, would you prefer they cut the child in half and send one part to public school and home school the other?
10.25.2008 12:58pm
Roger Schlafly (www):
The reason why the family courts see actions like "Motion to Allow Teenage Son to Drive Car to Visitation" is that there are judges who are willing to rule on such matters. I think that it is incorrect to infer that the parents cannot come to an agreement on the issue; you can only infer that one parent thought that he had something to gain by bringing a motion to the court.

The above Staub case says, "Mother and Father were apparently unable to come to an agreement on the education issue", but all we really know is that the mother and father had a disagreement about the applicable law. It is possible that they will be able to come to an agreement, now that the law has been clarified.

But the law hasn't been clarified very much, with the court saying self-contradictory nonsense like, "well-established best interests standard, applied on a case by case basis". The term "case by case" is a euphemism for there being no standard.
10.25.2008 1:08pm
Sasha Volokh (mail) (www):
Roger: This is all true. I'm all in favor of bright-line rules, and in theory the "best interests of the child" standard seems awful, but what do you propose as the alternative?
10.25.2008 1:10pm
GMUSOL05:

Roger: This is all true. I'm all in favor of bright-line rules, and in theory the "best interests of the child" standard seems awful, but what do you propose as the alternative?


That's like Captain Kirk asking the ship's computer to explain love.
10.25.2008 1:40pm
loki13 (mail):
Roger,

No offense, but you clearly don't understand much about how family law works in practice (as opposed to in theory). While there are certain standards that can be applied (for example, in a TPR, or a dependency) it is nearly impossible to do so in other situations, such as a divorce.

You have two people splitting up. Say you have on child. These two people, if it cannot be said they hate each other (as is often the case), you can at least say no longer like each like they once did. They cannot reach an agreement. Many times they are using the child, and the legal system, as a proxy to resolve their various emotional issues. A judge, who cannot possibly fully understand 'everything' that goes into their life, has to make a decision. Why?

BECAUSE THEY INVOKED THE JURISDICTION OF THE COURT.

The judge makes a ruling. They move on. Or they don't. As for the standard- feel free to come up with a better one; perhaps you would like the judge to rule in the worst interest of the child? Or maybe the judge should always rule for home schooling (or public education) as a bright line standard?

In the meantime, all I hear is persistent ill-informed whining. Perhaps you have had a personal experience that went badly. I don't know. Maybe you'd like to get divorced in an Islamic country, which uses a bright-line- father always gets full custody, period.

If you don't want the judge making decisions for you, then work it out privately. Just like it works in everything other sphere of life. You'll also save yourself time, heartache, and lawyers' fees. Unfortunately, most people are too busy trying to 'win' a divorce, and not trying to think about what is really in the best interest of their children.
10.25.2008 2:32pm
loki13 (mail):
WRT the OP, I think the appellate court got it right. First, parents have the general discretion to direct their child's education. I don't believe that a general presumption for either public (or private) or homeschooling would be a great idea, but could be considered on a case-by-case basis. There might be individual factors (the particular public/private school, the nature of the homeschooling, what type of schooling the child was accustomed to, etc.) that weigh in one direction or the other, but a per se rule (or even a presumption) would be a bad idea.
10.25.2008 3:03pm
Roger Schlafly (www):
Many times they are using the child, and the legal system, as a proxy to resolve their various emotional issues. A judge, who cannot possibly fully understand 'everything' that goes into their life, has to make a decision.
No, I do not agree that the judge always has to make a decision. There are some problems that the courts canot solve, and some problems that the court make worse by trying to solve.
10.25.2008 3:06pm
pete (mail) (www):

No, I do not agree that the judge always has to make a decision. There are some problems that the courts canot solve, and some problems that the court make worse by trying to solve.


Then who does decide if the parents refuse to compromise and have joint custody?

I am not a lawyer and have no experience dealing with these issues, but I honestly do not understand where you are coming from on this. If the parents are in disagreement and go to court to resolve this issue I see no other choice, but for the judge to make some sort of decision, either on what he thinks is best for the child, give one parent the sole authority to make the decision, flipping a coin, whatever.
10.25.2008 3:16pm
Joe Bingham (mail):
Guys at my highschool were homeschooled all the time. It was no big deal.
10.25.2008 3:19pm
ARCraig (mail):
"Best interest of the child" is a completely meaingless standard. It's akin to simply telling judges to "make the best decision". It's not a guide at all.
10.25.2008 3:28pm
Roger Schlafly (www):
The parents agreed to share in making educational decisions of importance in the life of their children, and I think that's what they should do. But that means that the parents make the decision, not the judge.

It might seem that schooling is just the sort of decision that leaves no room for compromise, but that is not true. There are many kids who are homeschooled part-time, and who attend a regular public school part-time. In this case, the father wanted more advanced teaching in some subjects, and more social interaction. The mother even agreed to send the kids to an outside science class for those very reasons. It seems likely to me that, if the court had not intervened, the parents could have found a mutually agreeable arrangement that would have satisfied most of their wishes.
10.25.2008 3:32pm
loki13 (mail):
Roger,

I truly have no understanding of what the heck you are talking about. Two people are having a dispute. They cannot solve it. They ask someone else (aka the judiciary) to solve it for them. That's how it works. Since the predicate for this is that the two individuals cannot come to a solution together, I think you are unclear on the entire concept. What would you prefer? Duelling? Binding arbitration (then we can have unaccountable activist arbitrators deciding your future!)*? Rock paper scissors?

*As an aside, the state where I spent a summer in famlaw had mandatory non-binding arbitration as a requirement in disputed divorces. I thought that was helpful, when it worked. Unfortunately, there so much hatred in so many cases that it just wasn't effective.
10.25.2008 3:33pm
loki13 (mail):
Roger,

Again, they did not come to a solution or they would not bee in court. When the parents reach a decision, they have reached a decision, and they get to do it. Only when they refuse to compromise will the court be forced to make a decision. I'd love to see your view analogized to other areas of the law-

Injured in an accident? Don't let a judge &jury determine how much you should get. Just talk to the other person until the two of you decide how much s/he should pay you!

Contract dispute for non-performance? Who needs a judge. Just hug it out, bro! We'll all reasonable people!

Government wants to ED your property? Just have some coffee with them- nothing a little coffee talk can't solve!

Of course, this is even more effective in the family law area where people are so reasonable and never act irrationally, and everyone can just sit down and discuss things like rational adults. I mean, it's not like they ended up in court or anything instead of having an amicable settlement that just needed to be signed off on.
10.25.2008 3:39pm
Fub:
loki13 wrote at 10.25.2008 1:32pm:
If you don't want the judge making decisions for you, then work it out privately. Just like it works in everything other sphere of life. You'll also save yourself time, heartache, and lawyers' fees. Unfortunately, most people are too busy trying to 'win' a divorce, and not trying to think about what is really in the best interest of their children.
Agreed that too often both parties are trying to "win a divorce". The sad fact, however, is that only one party behaving badly is sufficient to bring an issue to court.

Even if one parent is reasonable and accommodating, the other is still free to be unreasonable and vexatious; and move for the court to decide a matter. The reasonable parent is still stuck with attorney fees and the court's decision.

In such cases, advice to "work it out privately" is little different from "don't marry a bad actor in the first place."
10.25.2008 3:42pm
Joe Bingham (mail):
"Best interest of the child" is a completely meaingless standard. It's akin to simply telling judges to "make the best decision". It's not a guide at all.

I don't think it's a great standard, but it's not "completely meaningless." One can envision many situations in which a judge made a decision that was explicitly in the best interests of a parent or both parents and not of the child. It's unhelpful in situations where the child's best interests are unclear, but it is a much clearer standard than "the best decision," which could be interpreted take into account the parents', grandparents' or community's interests as well.
10.25.2008 3:54pm
Casper the Friendly Guest (mail):
Here in Madison, Wisconsin, many homeschooling parents call it "unschooling." And based on the "unschooling" parents I have encountered, I'd be willing to let judges presume that public schooling is better than unschooling.
10.25.2008 3:56pm
Joe Bingham (mail):
Here's David Friedman on unschooling, if you're interested.
10.25.2008 4:20pm
David M. Nieporent (www):
No, I do not agree that the judge always has to make a decision. There are some problems that the courts canot solve, and some problems that the court make worse by trying to solve.
You're right that the judge doesn't "have to" make a decision. But you're irrationally repeating the assertion that the parents should decide on their own, without acknowledging that there is a possibility they won't, and failing to address that latter situation.

When two people with equal rights in a particular instance -- whether it be parents, business partners, or property co-owners -- cannot agree, there has to be some mechanism for making the decision. Either you create a default rule as to who decides ("X always wins") or a default rule as to what the decision will be ("status quo shall be maintained," "property shall be sold at auction with the proceeds split evenly") or a binding method for deciding who wins ("pistols at 20 paces," "court").

You could solve the problem by abolishing joint custody, but you would still need some test -- such as the "best interests of the child" standard you dislike so much -- for the court to decide who should get sole custody. And if you are willing to allow joint custody, then what is your proposal?

If a court doesn't decide, and the parents are unwilling or unable to compromise, does the kid just not get any school at all?
10.25.2008 4:22pm
Sarah (mail) (www):
Given that you're putting some of the very best schools in the [insert jurisdiction here] in with the very worst schools in that same jurisdiction, it'd be pretty crazy to say that "public schooling" is better or worse than almost anything else. I can think of some public schools where the students would be better off working in a sweatshop than being in class (at least they'd get some pocket money from the sweatshop.)

I wasn't quite in that situation -- the public school in question simply saw nothing wrong with putting a lone 11-year-old in high school with 14-19 year-olds -- but there's no question that homeschooling was in my best interests, at least in 1992-1994. As it happens, my parents (who went through mediation for their divorce, as they couldn't afford lawyers) made an agreement, stuck to it, and kept the government out of the question, despite the fact that my dad is more or less totally opposed to homeschooling. I'm glad that for youngsters less fortunate than I, at least in Pennsylvania, the courts are inclined to actually look at the situation rather than rely on a blind rule.
10.25.2008 4:23pm
Roger Schlafly (www):
Loki13, there is no other area of law that works like family law. If you rear-end my car and I sue you, the judge does not try to determine the best interest of the car.

Joe, the BIOTCH is completely meaningless. In this case, the judge claiming to be finding the BIOTCH by noting that the kids had been lawfully homeschooled in the past, and determining that they seemed to be doing well. But that says nothing about the best interest. Maybe they would be doing even better in the public school. Truly finding the best interest would require determining which is better, public school or homeschool, and that judge is not fit to make such a determination. As you can see just from the comments here, it is a matter of opinion, and only reflects the judge's prejudices.
10.25.2008 4:25pm
David M. Nieporent (www):
It might seem that schooling is just the sort of decision that leaves no room for compromise, but that is not true. There are many kids who are homeschooled part-time, and who attend a regular public school part-time. In this case, the father wanted more advanced teaching in some subjects, and more social interaction. The mother even agreed to send the kids to an outside science class for those very reasons. It seems likely to me that, if the court had not intervened, the parents could have found a mutually agreeable arrangement that would have satisfied most of their wishes.
Yes, they "could have" reached a compromise, but what if they didn't?

You're acting as if they'd eventually come to a decision if the court didn't intervene. If you think that, you've never been involved in a nasty divorce. (And even if it were true, how long do you plan to wait on that "eventually"? Should the child be left uneducated, or not given medical treatment, or whatever, for a year or two, until they finally agree?)
10.25.2008 4:26pm
David M. Nieporent (www):
Loki13, there is no other area of law that works like family law. If you rear-end my car and I sue you, the judge does not try to determine the best interest of the car.
That's right, because cars don't have interests. But children do. Hence the problem with your argument.

Normally we delegate to parents the right to decide what's in their child's best interests. If parents can't agree, someone else has to. We can't partition it or order it sold, the way we can with a parcel of land which is jointly owned.
10.25.2008 4:30pm
Joe Bingham (mail):

Joe, the BIOTCH is completely meaningless. In this case, the judge claiming to be finding the BIOTCH by noting that the kids had been lawfully homeschooled in the past, and determining that they seemed to be doing well. But that says nothing about the best interest. Maybe they would be doing even better in the public school. Truly finding the best interest would require determining which is better, public school or homeschool, and that judge is not fit to make such a determination. As you can see just from the comments here, it is a matter of opinion, and only reflects the judge's prejudices.


My point is that it reflects the judge's prejudices about what's in the children's best interests. One could imagine many standards where the judge would make decisions about a different set of preferences--say, what's the the mother's best interest. As long as the standard has some limiting effect on the range of prejudices from which the judge pulls his decision, it's not "completely meaningless."
10.25.2008 4:31pm
Roger Schlafly (www):
When two people with equal rights in a particular instance -- whether it be parents, business partners, or property co-owners -- cannot agree, there has to be some mechanism for making the decision.
Yes, and in other areas of the law, judges are sometimes required to divide those rights. But that is not what happened in this family law case. The judge did not try to divide the rights of the parents. Instead, he tried to apply the BIOTCH to determine whether homeschooling or public school was best for the child. But in reality, he made no such determination. Instead, he usurped the authority of the parents, and substituted his own prejudiced judgment. In my opinion, the family court judges should not have jurisdiction to do that.
10.25.2008 4:41pm
loki13 (mail):
Roger,

No offense, but I still do not understand your points. I think this might be one of the few thread in which D. M. Nieporent and I agree, and he has stated the points I have (with perhaps more elegance and fewer typos).

In the cases before the court, there has been no agreement. The parties ask the court to make a decision. You don't like the way the court makes the decision, but you don't seem to have a better way. You are non-responsive to the question of rules vs. standards, so other than having a generalized grievance (which would be non-justiciable) I'm not sure what you'd like.

I think Fub makes a good point, in that in the intransigence of only one party can cause the whole thing to unravel. Usually, though, both parties believe that other side is the one being intransigent. And if one side is truly a 'bad actor', then hopefully the court will recognize it (and my limited experience has been that they usually have).
10.25.2008 4:43pm
Roger Schlafly (www):
Should the child be left uneducated, or not given medical treatment, or whatever, for a year or two, until they finally agree?
Those are required by law, and parents can forfeit their parental rights if they neglect their kids. There is a different court for those concerns.
If parents can't agree, someone else has to. We can't partition it or order it sold, the way we can with a parcel of land which is jointly owned.
Actually, shared custody is increasingly popular. According some research, shared custody is especially valuable when the parents disagree the most.
10.25.2008 4:51pm
pete (mail) (www):

Instead, he usurped the authority of the parents, and substituted his own prejudiced judgment.


No he didn't:


Father requested that the trial court prevent continued home schooling of the parties' minor children by Appellee ("Mother"), Toni J. Staub. On appeal, Father asks us, inter alia, to adopt a clear but narrow rule that requires children to attend public schools when parents who share legal custody cannot agree on home schooling versus public schooling. We decline to adopt such a rule or presumption.


You keep using the word "parents" as if it was the judge against one unit. But the parents do not agree. They are not an alligned whole. And from this decision it looks like the only thing they are not in agreement on is how to educate the children.


Mother and Father were apparently unable to come to an agreement on the education issue and, on July 30, 2007, Father filed the instant petition for special relief pursuant to Pa.R.C.P. 1915.13. On August 21, 2007, the trial court held a hearing on Father's petition for special relief. On August 24, 2007, the trial court issued the instant order denying Father's petition for special relief. This appeal followed.


How in the world is that the court usurping the parents (plural) authority if the court is backing one parent (singular) against the parent (singular) who brought the petition. The court is letting the mom make the decision because the court sees no compelling reason to override her judgment.

That is pretty much the opposite of usurping.
10.25.2008 4:58pm
Roger Schlafly (www):
In the cases before the court, there has been no agreement. The parties ask the court to make a decision.
No, not exactly. Often there is an agreement. The "parties" do not ask the court; it only takes one party to bring a motion to the court. Under the so-called BIOTCH standard, pretty much any agreement can be broken by one party making a motion to the court and asking the court to substitute its judgment for the judgment of the parents.
10.25.2008 5:02pm
Oren:
If the parents agree, then neither would file with the court. Filing with the court is proof positive that one party is not content with the agreement.
10.25.2008 5:04pm
Nathan_M (mail):
Roger Schlafly - I thought I was starting to understand your position, but I'm afraid I'm back to being mystified. You seem to be saying that you approve of how courts handle other situations where they clearly delineate parties' rights.

But then you also seem to approve of shared custody, especially in cases where parents disagree.

Now as I see it, clearly delineating parents' rights is incompatible with shared custody. If a court is not going to rule on what should happen when parents disagree it has to fashion its order in such a way that no such disagreement is possible. As I see it, that would mean that one parent would have to have the ultimate authority to make any particular decision which might arise, and shared custody would be impossible.

How do you propose handling a situation like this where the parents share custody, there is no suggestion that either is neglectful in any way, but the parents make mutually incompatible decisions? Would you have the court decide in advance which parent gets to make the decision in the event of conflict? Would you have the court terminate the shared custody and grant one parent sole custody?
10.25.2008 5:13pm
Roger Schlafly (www):
How in the world is that the court usurping the parents (plural) authority if the court is backing one parent (singular) against the parent (singular) who brought the petition? The court is letting the mom make the decision because the court sees no compelling reason to override her judgment.
Because the parents agreed to share in making educational decisions of importance in the life of their children, and they ought to have that right anyway. The judge should not be just letting the mom get her way because he happens to agree with her homeschooling decision. The dad should get his way either. They should be allowed to share in those decisions.
Filing with the court is proof positive that one party is not content with the agreement.
It is only proof that one party thinks that he has something to gain by bringing a motion.
10.25.2008 5:14pm
loki13 (mail):
Roger,


Your analysis is so confused I hardly know where to start. I don't want to keep restating the obvious, so I'll just point this out:


pretty much any agreement can be broken by one party making a motion to the court and asking the court to substitute its judgment for the judgment of the parents.


No, no, no. "The parents" no longer exist as a unitary whole. Note to Roger: the 'one party' you allude to is, um, one of the parents. The court is not substituting its judgment for the judgment of the parents; rather, the two parents cannot agree and are forcing the court to make the decision for them. Moreover, it has been my actual experience that courts look very unfavorably upon either party changing an agreement for any reason, and there is a presumption that a change in a court-approved agreement that is being contested has a high burden to meet. But not impossibly high, given that circumstances change. Finally, your analysis fails as both applied to the facts of this case and to any reality of family court I have seen where the judges strive mightily to make good decisions, and the litigants are often there for less-than-noble reasons (or are emotionally lashing out).

This really isn't too hard, and I'm not sure if you have a real point, have been scarred by personal experience, or are being willfully obtuse. As I try (really) to follow OK's good faith maxim, I'll assume it's one of the first two.

So- what's your idea for the process to use (and the rule or standard to apply) when the two parents cannot reach an agreement, and how would your system be an improvement over what we currently do?
10.25.2008 5:18pm
Kelly (mail):
Roger, you're now the judge. The father has brought the motion at issue in this case before you. What do you do? Why is your course of action preferable to the decision this judge made?
10.25.2008 5:20pm
Roger Schlafly (www):
How do you propose handling a situation like this where the parents share custody, there is no suggestion that either is neglectful in any way, but the parents make mutually incompatible decisions? Would you have the court decide in advance which parent gets to make the decision in the event of conflict? Would you have the court terminate the shared custody and grant one parent sole custody?
No, certainly not. Millions of kids are growing up in shared custody today. Yes, parents have disagreements. All parents have disagreements. That's life. They deal with it. The more the parents disagree, the more important it is for them to share custody so that the kids will get a meaningful relationship with both parents.

Maybe one parent thinks that homework is important, and one does not. Maybe one thinks that baseball in important, and the other does not. It is not for me to tell them how to run their lives, and family court judges should not either.
10.25.2008 5:24pm
pete (mail) (www):

Finally, your analysis fails as both applied to the facts of this case and to any reality of family court I have seen where the judges strive mightily to make good decisions, and the litigants are often there for less-than-noble reasons (or are emotionally lashing out).


I think the key fact here is that both the family court and the appeals court responses were basically to do nothing and just leave the situation as it was with the mom homeschooling the children. The only thing the courts did was to reject the father's request to change how the children were being educated, which was the same way they were educated while they were married.

The court did not really do anything anything in this case except decide to not resolve the dispute.
10.25.2008 5:32pm
pete (mail) (www):
Roger, what would you do differently if you were the judge in this case? Please be specific.
10.25.2008 5:37pm
loki13 (mail):
Roger,

So, as I understand it, you are basically advocating a stance of "Can't we all just get along?"

What happens when the parents cannot, and the decisions made by one party are mutually exclusive with those of the other party.

To give the general:
1. How could you, in a shared custody situation, have *both* homeschooling and pubic education given the attendance requirements (inter alia) of public education? IOW, if one parent wants the child to attend MyOldHighSchool and the other parent wants to opt out (or send them to private school), and they won't compromise, who gets the default power in a shared custody?

2. In the instant situation, as pete refers to, what did the judges do wrong?

(These, and other reasons, are why I personally think fully shared custody arrangements are bad ideas unless the parents still get along)
10.25.2008 5:47pm
Nathan_M (mail):
Roger - I still don't get it. I agree that in a lot of cases like this the parents will share custody, they will discuss things and reach agreements like mature adults, and the courts will never decide anything. And that's good.

But doesn't there still have to be a mechanism for when the parents do not agree? If it's the first day of school and the father wants to drive the children to the local public school and the mother wants to do math problems around the breakfast table something has got to give.

I am in complete agreement with you that it's extremely important that the children have meaningful relationships with both their parents. I also agree that sometimes a parent might bring a motion because he thinks he will win in court even though a compromise with the other parent was possible, and that this is undesirable. But there are also situations where two good parents legitimately cannot agree, or where one parent tries to use the children to control the other parent, or where one parent is just unfit. As I see it, you are no doubt right that there are difficulties with the best interest of the child standard, but you aren't offering any sort of improvement. It's awfully hollow to complain so loudly about the present system if you can't say what would be better.
10.25.2008 5:47pm
Roger Schlafly (www):
I think that the appellate court is correct that there should be no rule favoring one type of schooling, but it does not really solve anything because it leaves family court judges to apply whatever rules they please, as long as they say it is for the BIOTCH.

I don't really agree with either parent, but I think that the core of the problem is that the family court supposedly follows the so-called BIOTCH standard, and both parents were stuck arguing about what the BIOTCH was. As I explained above, I think that the case probably would have had a much better outcome if the court had not insisted on intervening into the schooling decision.
10.25.2008 5:51pm
Joe Bingham (mail):
I just noticed how funny that acronym is.
10.25.2008 5:54pm
Kelly (mail):

I don't really agree with either parent, but I think that the core of the problem is that the family court supposedly follows the so-called BIOTCH standard, and both parents were stuck arguing about what the BIOTCH was. As I explained above, I think that the case probably would have had a much better outcome if the court had not insisted on intervening into the schooling decision.


First, the court didn't intervene. The father wanted to send the child to public school, the mother disagreed, and then the father asked the court to get involved. Is it your position that the court should have refused to hear his motion at all?

Second, you still haven't posed an alternative to the BIOTCH standard. If BIOTCH is so bad and unworkable and gives judges too much discretion to make decisions, what should be done instead?
10.25.2008 5:56pm
Sasha Volokh (mail) (www):
I'm not a family law expert or anything -- in fact, I know virtually nothing about family law. But here's what makes judicial intervention "necessary" here. Suppose there's joint custody, meaning the parents both get to participate in education and other decisions. But suppose the child lives with mom most of the time.

Now if they agree on education, so much the better. But if they disagree, then mom, who has physical control over the child most of the time, might put him in some school or other. Say she homeschools. What does dad get to do here if he has some other view? He might try to take the kid out of the house by force. Is that what we want?

O.K., if he can't do that, then mom might just stand firm on her physical control over the child and do as she pleases as long as he's in the house.

So now they get into court. Suppose the judge says: "A court has no business deciding this. Education is up to the parents." What he's done is ratify whatever decision has been made based on physical control of the child. So basically there's no longer joint custody.

Want a bright line rule to resolve this stuff without judicial micromanagement? Get rid of joint custody. Assign physical control of the child to someone or other, based on days of the week or months of the year or whatever, and during that time they get treated as if they were the sole parent. If you like that system, then things become a lot simpler.

It's because some people find that unattractive that we get joint custody and all the judicial micromanagement of parental disputes that goes along with it.
10.25.2008 5:57pm
Sasha Volokh (mail) (www):
It strikes me that my pronouns (they, he, etc.) above might be somewhat ambiguous, sometimes referring to mom &dad, sometimes to mom &child, etc. I hope you can figure it out by context.

As I said, I know next to nothing about family law, but this represents my general impression. It may be totally wrong.
10.25.2008 5:58pm
Roger Schlafly (www):
How could you, in a shared custody situation, have *both* homeschooling and public education given the attendance requirements (inter alia) of public education?
Where I live in California, there are kids who attend a regular public school one or two days a week, and are homeschooled the rest of the week. I guess the state already has the bureaucracy and funding rules to deal with it. It is not something that most parents would want to do, but it is certainly possible and I know kids who do it.
10.25.2008 5:58pm
pete (mail) (www):

As I explained above, I think that the case probably would have had a much better outcome if the court had not insisted on intervening into the schooling decision.


Have you read the decision? You do realize that the court did not insist on intervening and left everything the way it was after the father asked it to intervene. The court did the opposite of intervening and decided to do nothing.

If you were the trial court judge, what would you have done? Please be specific.
10.25.2008 6:00pm
Roger Schlafly (www):
we get joint custody and all the judicial micromanagement of parental disputes that goes along with it.
In my experience, the worst judicial micromanagement does not come from joint custody. It comes from one parent having 80-90% custody. Just look at the above case. The father's first complaint was that the kids were not getting enough social development. If the father had the kids half the time, he would simply make sure that the kids got social development opportunities when they were with him, and he might not care what happened when they were with the mom.
10.25.2008 6:10pm
loki13 (mail):
Roger Schlafly,

You use the term, "in my experience". What is your experience with the family court system? I clerked for a summer with my state's family court. I saw many, many, many cases. I can tell you (in my limited experience) that the main problems were caused when there a situation that involved the following:

1. One parent had something less than full custody.

2. The two parents did not get along.

This was always a recipe for disaster. If the parents can get along (or agree to disagree about parenting styles) then it's not an issue.

But the judge I was working for made the following observation every time he awarded some sort of joint custody in a less-than-amicable divorce. "There's a repeat customer."

My observation? He was right.

I'm not sure where your belief comes from, and you should also realize there is a difference between physical custody (where the child is located) and parental decisions that affect the child.
10.25.2008 6:26pm
Kelly (mail):
Roger, the problem with your ideas concerning good outcomes is that they always involve the parents reaching some form of agreement or understanding with regard to their kid's education. Obviously, that is the best solution for everyone. In such a case, there is no reason for the court to be involved at all. But there needs to be a mechanism for dealing with situations where the parents cannot reach agreement - which is unfortunately all too often, given the frequently acrimonious feelings that come out of divorce. That's where the courts come in, and where judges attempt to find solutions that are in the best interest of the child. It's far from perfect, but it's better than any alternative that I'm aware of.
10.25.2008 6:29pm
Roger Schlafly (www):
But the judge I was working for made the following observation every time he awarded some sort of joint custody in a less-than-amicable divorce. "There's a repeat customer."
Yes, that is the inevitable consequence of the so-called BIOTCH standard. No decision is ever final, and no parents ever have any authority, because any parent can petition the judge at any time to make changes based on BIOTCH. That is why the family lawyers and court psychologists are so much in favor of BIOTCH. It is great for repeat customers, and for judges who love to micromanage the lives of others.
10.25.2008 6:36pm
R Nebblesworth:
Roger,

You are just arguing that the court should have gone with your preferred solution (shared custody) and defining that as "not intervening". But to get this outcome, the court would have had to intervene. Like many others have asked, can you please state specifically what you would have done as this trial judge and why your actions are better than the case in the OP?
10.25.2008 6:37pm
Kelly (mail):

No decision is ever final, and no parents ever have any authority, because any parent can petition the judge at any time to make changes based on BIOTCH.


The only alternative to this is giving sole custody to one parent, or giving all decision-making authority in some realms of child-rearing (education, medical decisions, etc.) to one parent and all authority concerning other decisions to the other parent.

Some people may think that is a better solution, but it is totally inconsistent with you earlier position on joint custody as the preferable outcome.
10.25.2008 6:42pm
American Psikhushka (mail):
loki13-

(These, and other reasons, are why I personally think fully shared custody arrangements are bad ideas unless the parents still get along)

You've already acknowledged that one parent can be unilaterally wacky.

Now you're saying that there shouldn't be shared custody if they don't get along? Whats the term for a system where the craziest or most unreasonable always gets their way? Psychocracy? Goofballism?
10.25.2008 8:22pm
loki13 (mail):

Whats the term for a system where the craziest or most unreasonable always gets their way? Psychocracy? Goofballism?


I call it a David Bernstein comment thread.
10.25.2008 8:48pm
Nathan_M (mail):
Loki13 wins the thread.
10.25.2008 9:49pm
American Psikhushka (mail):
loki13-

I call it a David Bernstein comment thread.

Congratulations on winning the thread. I hope it doesn't go to your head and you can still be down to earth when you visit the folks back home.

But you seem to be advocating the idea that the most unreasonable party should get majority custody, as opposed to a default of joint custody. As thread champion, could you clarify your position for the unwashed?
10.26.2008 12:45am
loki13 (mail):
A.P.,

Nowhere did I write that the unreasonable party should get majority custody. My observation is that if the parties involved (the parents) have fundamental problems, then joint custody will simply see the continuation of those problems carried out in the courts.

While sometimes an outside observer can adduce that one part in a divorce is the "unreasonable" party, it is more often the case that both parties are unreasonable, and feel that only the other party is unreasonable.

I am agnostic as to whether an assignment of joint custody or full custody in a contentious divorce is better for the children; that would need more empirical evidence. I do know that the assignment of joint custody in a contentious divorce does end up involving the courts more, decreases the resources available to the family (because of future litigation), and leads to more entertaining threads on the Conspiracy. But if you'd like to analogize it (as Sasha did above), it's like the assignment of a property right; make it clear and it solves a lot of problems; that doesn't mean we should, but when we don't, we need to recognize what the collateral effects of this normative choice are.
10.26.2008 1:00am
David M. Nieporent (www):
Where I live in California, there are kids who attend a regular public school one or two days a week, and are homeschooled the rest of the week. I guess the state already has the bureaucracy and funding rules to deal with it. It is not something that most parents would want to do, but it is certainly possible and I know kids who do it.
Roger, you're still not paying attention. It's possible to do that if the parents agree to that compromise. You still haven't explained how to do it if the parents don't agree.

Mom wants Little Joey to go to public school. Dad doesn't. They can't agree. Mom packs Joey a lunch and sends him off to the school bus stop. Dad drives by, sees the kid standing at the bus stop, ushers him into his car and takes him home to give him math lessons.

Mom gets a call from the school that Joey didn't show up, so the next day, she walks Joey to the bus stop and waits with him until the bus arrives. Dad drives by, sees Joey there, and tries to grab him and put him in the car. Now what? Dad wins because he's bigger and stronger than Mom? Mom wins because she has more friends at the bus stop than Dad, and they block his car to keep him from driving away with Joey? Or does a judge decide?
10.26.2008 1:30am
Roger Schlafly (www):
Here is another example. Dad wants Joey to be a rabbi, and sends him to Hebrew school. Mom wants Joey to be a Catholic, and sends him to Sunday school. The parents do not agree on which is better. So what do you do? Ask a judge to apply the BIOTCH standard and determine whether it is better to be a Catholic or a Jew?

No. Judges cannot do that. Parents really do have disagreements like that all the time. But for many disagreements, it is neither necessary nor desirable to judges to intervene and try to force agreement.

I am appalled at the folks here who so readily want judges to run the lives of parents. That is what BIOTCH is all about, and no good has ever come from it.
10.26.2008 4:28am
Kelly (mail):
Roger, I have never met a family law judge who wanted to run the lives of parents. In most cases, their greatest desire is that the parents will be reasonable enough to run their own lives. Unfortunately, a lot of people are unreasonable and many usually reasonable people act unreasonably in contentious child custody situations.

And no one here wants judges to run the lives of parents either. But we recognize that in situations where neither parent has authority to make decisions on their own and the parents cannot reach agreement, there needs to be a process and an authority to resolve their disagreements. I'm okay with that being a judge in family court. If you're not, what's the alternative?

If you'd like, just answer your own question:


Here is another example. Dad wants Joey to be a rabbi, and sends him to Hebrew school. Mom wants Joey to be a Catholic, and sends him to Sunday school. The parents do not agree on which is better. So what do you do?


Parents cannot reach an agreement. Neither parent can force the other to do what they want, because they have joint custody. You don't want the court involved. What happens?
10.26.2008 10:54am
Fedya (www):
Roger Schlafly asked:
Here is another example. Dad wants Joey to be a rabbi, and sends him to Hebrew school. Mom wants Joey to be a Catholic, and sends him to Sunday school. The parents do not agree on which is better. So what do you do?

Dad takes Joey to shul when he's got custody; Mom takes Joey to Catholic school when she's got custody. The problem comes when Dad or Mom tries to use the courts to stop the other parent from doing his or her thing.

Of course, in your example, Joey will grow up to be a Unitarian.
10.26.2008 12:01pm
FlimFlamSam:
Kelly,

You write:

But we recognize that in situations where neither parent has authority to make decisions on their own and the parents cannot reach agreement, there needs to be a process and an authority to resolve their disagreements.

Well, this turns out not to be entirely accurate in American law. There are several situations where courts refuse to intervene and settle disputes. For example, this occurs frequently in First Amendment religious dispute cases.

I think Roger Schlafly is arguing that there should typically be a similar sort of absentention in these kinds of family disputes, and I wholeheartedly agree with him. If the father wants to send the kid to public school, and the mother wants to homeschool, why can't the judge say "I'm not intervening in this. The kid has to be educated under state law. You, the parents, are to comply with that law. How you do it is up to you." Why is that not an acceptable answer?
10.26.2008 1:11pm
Kelly (mail):
If the father wants to send the kid to public school, and the mother wants to homeschool, why can't the judge say "I'm not intervening in this. The kid has to be educated under state law. You, the parents, are to comply with that law. How you do it is up to you." Why is that not an acceptable answer?

That is a perfectly acceptable answer, so long as the parents are actually able to reach an agreement concerning how the kid is going to be educated. Obviously, having the parents reach their own solution to any disputes is the best outcome for all involved. That is why a lot of states require parties to go to mediation or non-binding arbitration with their disputes before going to court. But in cases where the parents are so adversarial that they cannot reach an agreement and their disagreement is preventing their child from being educated, there would need to be some involvement from an outside body to make sure the kid was going to school in some fashion.

Obviously, that is an extreme case. More frequently you have a situation like the case at issue here - one parent doesn't like the decision, educational or otherwise, that the other parent is making and petitions the court to challenge that decision. Then we reach the issue that has Roger Schlafly so hung up: What does the court do? Dismiss the petition out of hand, because to do otherwise is improper inference with the parents' decision-making? That would essentially mean that the parent with physical control of the child (here, the mother) would get to make most of the important decisions for the child without the other parent having input. If the court does hear the challenge, how should it render a decision? A presumption that one form of schooling, or the decision of one particular parent, is always right? Or look at the situation on a case-by-case basis, apply Schafly's dreaded best interest of the child standard?

I agree that it is not the place of the court to direct the religious upbringing of the child - any motion to get the court to intervene in religious disputes likely would be dismissed right off (for First Amendment reasons, but also because mandating that a child be raised in a particular religion is generally not in the best interests of that child). That is one area where the parents would likely just have to fight it out. I was merely repeating Schafly's question back to him to try get him to clarify his position on what role the court should play in parental disagreements - as far as I can tell, his position is that it should have no role, eventually the parents will sing kumbaya and everyone lives happily ever after.
10.26.2008 2:08pm
Roger Schlafly (www):
If you agree that the judge cannot intervene in a religious dispute, then you have answered your own question. It is just not necessary or desirable for judges to resolve every dispute that parents have.

As long as there is a judge who is willing to rule on BIOTCH and is eager to intervene in the parents' lives, as is the case with nearly all family court judges, it is not possible for the parents to reach a binding agreement. Either parent could always walk into the judge later, and the judge will substitute his own judgment for the judgment of the parents. So if you really thought that parents reaching their own solution is the best outcome, then you would be against judges intervening under BIOTCH. An example is the above case, where the court's action made it more difficult for the parents to reach a compromise that would satisfy both of their concerns, as I explained above.
10.26.2008 2:33pm
Kelly (mail):
As long as there is a judge who is willing to rule on BIOTCH and is eager to intervene in the parents' lives, as is the case with nearly all family court judges, it is not possible for the parents to reach a binding agreement. Either parent could always walk into the judge later, and the judge will substitute his own judgment for the judgment of the parents. So if you really thought that parents reaching their own solution is the best outcome, then you would be against judges intervening under BIOTCH.

If the parents have reached an agreement, almost any judge is going to uphold that agreement in the face of a challenge by one parent or the other, absent a very strong showing that doing so is detrimental to the child. Most family law judges I've ever encountered, contrary to your portrayal, are very good at recognizing parents who are looking to use the court as a weapon and are dragging their ex into court over issues that were previously resolved. There are exceptions, but that is a problem of bad judges, not judges applying a bad standard. For someone so against the best interest of the child standard, you have yet propose an alternate rule for judges to apply.

I'm still unclear on what you think the court did wrong here. The child was being home-schooled by the mother; the father wanted the kid in public school. He asked the court to intervene and require that the kid be sent to public school; the court said no. Where exactly is the "judge who is willing to rule on BIOTCH and is eager to intervene in the parents' lives?"
10.26.2008 2:52pm
Roger Schlafly (www):
Where is the judge who is willing to rule on BIOTCH? Just read the above opinion. It says:
The trial court held a lengthy hearing on the issue of whether the children's best interests would be better served by attending public school or home school. ... Applying the best interests standard, we thus conclude that the trial court did not err ...
I do not think that the judge should have any jurisdiction to make such a decision. Family court judges really do intervene in parents' lives. They do it every day, all over the country. Just visit your local family court if you do not believe it.
10.26.2008 3:25pm
David M. Nieporent (www):
As long as there is a judge who is willing to rule on BIOTCH and is eager to intervene in the parents' lives, as is the case with nearly all family court judges, it is not possible for the parents to reach a binding agreement. Either parent could always walk into the judge later, and the judge will substitute his own judgment for the judgment of the parents.
Once again. there is no "judgment of the parents." There are two conflicting judgments of the parents. Except in cases of actual child abuse/neglect, the judge does not substitute his judgment for that of the parents; if the parents have a collective judgment, the judge never gets involved.


I think Roger Schlafly is arguing that there should typically be a similar sort of absentention in these kinds of family disputes, and I wholeheartedly agree with him. If the father wants to send the kid to public school, and the mother wants to homeschool, why can't the judge say "I'm not intervening in this. The kid has to be educated under state law. You, the parents, are to comply with that law. How you do it is up to you." Why is that not an acceptable answer?
Once again: because they need a way of resolving it. If courts abdicate their responsibility, then what's left? Roger keeps assuming that the couple will resolve it -- but what if they don't? Fisticuffs?
10.26.2008 3:38pm
Roger Schlafly (www):
Roger keeps assuming that the couple will resolve it -- but what if they don't? Fisticuffs?
As Fedya explained above, the child might grow up to be a Unitarian.
10.26.2008 3:42pm
Soronel Haetir (mail):
I actually like the "You, the parents, shall comply with that law" solution. If they fail, jail em.
10.26.2008 5:31pm
Hal Duston (mail):
I think I get what Roger is saying here.

Let me use a slightly different analogy. Let us say that a judge is presiding over a trial, and the trial has gone to the jury. Let us also say that after some time the jury comes to the judge and declares that they are hung and cannot reach a decision. Is it not the case that sometimes the judge tells the jury to try again if he feels that they haven't tried hard enough to come to a verdict.

I suspect that many times this is similar to what might be going on in long-term custody cases. The parties see "let the court decide" as the easier solution rather than attempting to work out some sort of compromise with their estranged spouse This is especially likely if they think they might get the "whole enchilada" rather than only partial.
10.26.2008 6:54pm
David M. Nieporent (www):
Let me use a slightly different analogy. Let us say that a judge is presiding over a trial, and the trial has gone to the jury. Let us also say that after some time the jury comes to the judge and declares that they are hung and cannot reach a decision. Is it not the case that sometimes the judge tells the jury to try again if he feels that they haven't tried hard enough to come to a verdict.
Yes; it's called an Allen charge.

But that's not what Roger is saying; he's not saying that the judge should say to the parents, "Try harder before you come back to me." He's saying that the judge should say, "Go away and don't come back at all."
10.26.2008 10:15pm
Crimson Wife (mail) (www):
Call me a cynic, but in the majority of custody-related disputes over homeschooling I've heard of, the real issue is not the child's education but rather $$$$$$. The dad wants the kids in public school so that the mom can go back to work full-time and he'll have to pay her less money. I've never heard of a case where the dad wanted to put the kid in private school at his own expense while the mom wanted to continue homeschooling. That would actually be a legitimate difference of opinion over the best type of education for the child. No, it's always the subsidized babysitting of the government-run education system that the dad really wants.
10.27.2008 7:42pm
Roger Schlafly (www):
Well, yes, people often consider money when considering educational alternatives. It is common for parents to prefer a public school just because it is cheaper than a private school.

Nothing wrong with that. Only someone very rich or very foolish would ignore costs.

What is truly offensive is for a judge to use BIOTCH to tell a parent that he must make a decision independent of costs.
10.29.2008 2:49am