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:
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Home Schooling as Factor in Child Custody Decisions:

My October 2008 post on a case involving this subject drew a good deal of reader interest, so I thought I'd note another case -- it's from late November, but I just ran across it recently. Here are the Michigan Supreme Court opinions denying review (Taylor v. Taylor):

[Young, J., concurring, joined by Taylor, C.J., and Weaver and Corrigan, JJ.:]

I concur in the order denying leave to appeal. According to the record, the “lynch pin” of the trial court’s decision to send the minor child to a public school was MCL 722.23(j), which considers the “willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent ....”

The record amply supports the trial court’s conclusion that the two parents simply “do not communicate,” and that the mother’s desire to homeschool the child would result in the father being precluded from having any “say or involvement in his child’s education.” While regrettable, I do not view the stray remarks of the trial court, which appear to reflect a view of homeschooling as less beneficial than a public school, as altering the legitimacy or primacy of the trial court’s best interests determination.

[Markman, J., dissenting:]

I respectfully dissent. Instead of denying leave to appeal, I would remand to the trial court for reconsideration of its order resolving the parties’ dispute concerning their child’s education. The trial court resolved this dispute in favor of the public schooling preferred by the father and in opposition to the homeschooling preferred by the mother. Although I take no position on the merits of the trial court's ultimate decision, I believe that the court erred by at least appearing to take improper factors into account in reaching this decision.

In particular, I believe that the trial court erred by appearing to substitute its own generally unfavorable attitudes concerning homeschooling for the public policies of this state, which accord no preference for either public schooling or homeschooling. While the trial court is entitled to its own views concerning the respective merits of these educational approaches, it is not entitled to replace the policies of Michigan with such personal views.

Here, the court concluded with regard to the parties’ six-year-old daughter’s educational prospects that “she doesn't seem to have a problem, I don’t believe, in being able to succeed anywhere,” but then terminated the daughter’s homeschooling, asserting that her interests would be best served by public schooling, in which both parents could be involved. In the course of rendering this decision, the trial court made the following observations:

  1. Public schools would offer the child a “wider exposure” than she would receive with homeschooling.

  2. Public schools would offer “much more diversity, many more opportunities with respect to the things that she would be able to do.”

  3. Although the court “appreciate[d] and respect[ed] [the mother’s] desire to have a religious-based schooling, we live in a very diverse society and it is not beneficial for children to be raised in a bubble where they do not have exposure to other people’s cultures and other people’s religion.”

  4. Public schooling would make the child “a more well-rounded person.”

Each of these observations may or may not be true, or relevant. However, taken as a whole, they evince an attitude toward homeschooling (and public schooling) that is simply not reflected in the laws and policies of this state. Taken as a whole, these observations suggest a predisposition by the trial court that, everything else being equal, public schooling is invariably preferable to homeschooling, a predisposition that would presumably also counsel in favor of public schooling in future disputes in which parents disagreed on approaches to their children’s education.

Upon remand, I would direct the trial court to resolve the instant dispute in a manner that is not grounded on a predisposition toward either public schooling or homeschooling. I would require the trial court, as it has done with regard to the other statutory factors set forth in MCL 722.23(h), to assess the best interest of this child in terms of her particular educational needs. While there conceivably may be circumstances -- pertaining either to the child, her parents, her parents’ relationship, or the available schools -- that would counsel in favor of public schooling or homeschooling in the instant case, these need to be set out with specificity and without reference to any predisposition toward either public schooling or home schooling.

[Footnote:] Although it may be true, as the Court of Appeals suggests, that the trial court’s decision on the child’s education was “not based on a bias against home schooling,” such conclusion entails speculation and conjecture in light of what was actually stated. Similarly, it is conjecture and speculation that these statements constituted mere “stray remarks,” as the concurring statement asserts. If the Court of Appeals, and the concurring statement, are correct in these assessments, the trial court, on remand, could make this clear. I am comfortable that this matter can be remanded to the same judge for further consideration.

The court of appeals decision is here.

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Home Schooling and Child Custody:

The News & Observer (North Carolina) reports:

Wake District Court Judge Ned Mangum said on Friday that he will require Venessa Mills to enroll her children in a public school for the upcoming school year. The ruling came as part of an ongoing divorce case....

Thomas Mills, Venessa's husband, had raised concerns that the children would be sheltered in a home school instead of in a regular public school setting.

Mangum appeared to agree with Thomas Mills at last week's court hearing even as the judge said that home-schooling has "had a great benefit" for the children.

"I do think that in the interests of the children being well rounded that public school will be a great option for them," Mangum said during the court hearing. [Audio of that is available on the News & Observer site. -EV] ...

The Mills' three children, ages 12, 11 and 10, have been home-schooled by their mother since 2005. She said they have made noticeable academic improvement since then, with two of the children performing two grade levels above their ages.

WRAL (Raleigh) also reports:

In an affidavit filed Friday in the divorce case, ... Thomas Mills ... said he was "concerned about the children's religious-based science curriculum" and that he wants "the children to be exposed to mainstream science, even if they eventually choose to believe creationism over evolution." ...

In a verbal ruling, Mangum said the children should go to public school.

"He was upfront and said that, 'It's not about religion.' But yet when it came down to his ruling and reasons why, 'He said this would be a good opportunity for the children to be tested in the beliefs that I have taught them,'" Venessa Mills said....

Of course -- if the judge's oral statements are being accurately reported by Venessa Mills -- the same logic would apply to children who are taught at private schools that teach creationism: If one divorced parent objects to such teaching, the judge could order that the children be sent to noncreationist schools instead of creationist schools, or give custody to that parent who promises to send the children to such schools.

I should note that I would firmly oppose any judicial order interfering with the father's ability to expose the children to evolution when the children are visiting with him (assuming the mother is given custody and the father is given visitation). And I personally do think that it's more in a child's best interests to be taught evolution than to be taught creationism. I just don't think that the First Amendment allows judges to make decisions based on such matters, for reasons I mention in my Parent-Child Speech and Child Custody Speech Restrictions article.

For an earlier case suggesting -- in my view, wrongly -- that disfavoring the creationism-teaching parent is more legitimate in child custody cases, see Waites v. Waites, 567 S.W.2d 326, 333 (Mo. 1978) (suggesting that under “best interests” test court may consider whether parent “would refuse to permit the child to attend a school class where evolution is taught”). For lots of cases in which judges considered parents' religiosity, atheism, racism, Communism, pacifism, support for Nazism, advocacy of the propriety of homosexuality, condemnation of homosexuality, and more, see the article I cited above.

For more on child custody decisions and home schooling -- setting aside the creationism issue, which as I note could arise even when the child is taught in a religious school outside the home -- see these older posts.

Thanks to Patrick Martin and Robert Bell for the pointers.

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