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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.

Steve:
I wonder who the trial judge was, I used to practice in that court.

It seems to me that there is a principled distinction between arguing "public schools are better because they make you well-rounded" - an impermissible conclusion for a judge to draw - and arguing "public schooling is preferable in divorce situations because it gives both parents an opportunity to participate in their child's education." The latter position strikes me as more defensible.
1.13.2009 5:19pm
Thomas_Holsinger:
The bench could use some "education" here. This is a new minefield in judicial terminology.
1.13.2009 5:26pm
Yankev (mail):

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."
So if, in another case, the custodial parent's intent to continue sending a child to parochial school should weigh in favor of a change in custody?
1.13.2009 5:54pm
Dilan Esper (mail) (www):
It seems to me that there is a principled distinction between arguing "public schools are better because they make you well-rounded" - an impermissible conclusion for a judge to draw - and arguing "public schooling is preferable in divorce situations because it gives both parents an opportunity to participate in their child's education." The latter position strikes me as more defensible.

I don't think either conclusion is impermissible, as long as it is based on sufficient evidence.

Imagine if the issue were medical treatment for a child with special needs. And parent 1 wants to put the kid in a homeopathic, holistic medicine facility where the kid is treated by shamans. Parent 2 wants to hospitalize the kid in a public hospital.

So long as the conclusion that facility 2 > facility 1 is based on the evidentiary record, I don't see a problem.
1.13.2009 6:01pm
BGates:
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.

So it is ordered the child is sent to a public school, to be insulated from exposure to any religion.

Once upon a time it was believed to be possible to have exposure to other people's cultures and religion through books.
1.13.2009 6:01pm
hattio1:
Based on the language, I have to agree with the dissent. I think the fact that the parents communicate poorly and that public schooling will allow both parents an opportunity to participate in their schooling is a fine reason for preferring one parent over the other. I don't know as a judge should demand public schooling though, if giving primary custody to the parent who desires to home-school because of other factors.
1.13.2009 6:09pm
Steve:
Imagine if the issue were medical treatment for a child with special needs.

But that's not the issue. I think public policy reflects a preference for standard medicine over shamanism, in a way that it does not reflect a preference for public schooling over homeschooling. It's not clear that the trial court was relying on any authority aside from personal preference.
1.13.2009 6:09pm
M. Sean Fosmire (mail):
Justice Markman's comments reflect the distrust of and even contempt for the common law* that we sometimes see among the conservative justices serving on the Michigan Supreme Court. It is an article of faith among judicial conservatives that legislators, not judges, are the political actors who properly make policy decisions. Some take this position without recognizing that policy-making is a proper and even a central judicial responsibility in the context of the common law.

The fashioning of the rules governing divorce and child custody, based on policy decisions, is a classic common-law decision for a judge to make. I am sorry to see that Justice Markman does not recognize this fact.

* The most striking example is "A Judicial Traditionalist Confronts The Common Law", 8 Texas Rev L &Pol 299, 305-310 (2004), in which Justice Robert Young of the Court compares the common law to "a drunken, toothless ancient relative, sprawled prominently and in a state of nature on a settee in the middle of one's genteel garden party".
1.13.2009 6:35pm
Dilan Esper (mail) (www):
But that's not the issue. I think public policy reflects a preference for standard medicine over shamanism, in a way that it does not reflect a preference for public schooling over homeschooling.

That's not really true and also not really relevant.

It's not really true because indeed laws and cultural practices make it very difficult to homeschool (and rightfully so). And it's not really relevant because as I said, as long as the determination to divert from a public policy is made on sufficient evidence, there's no reason not to do it.
1.13.2009 7:20pm
Roger Schlafly (www):
The problem here is that the judges are substituting their judgment for the parents'. If J. Markman cannot say whether public school is better or worse than homeschool, then how does he expect the lower court judge to make such a decision?
1.13.2009 7:35pm
Ak Mike (mail):
Mr. Fosmire - The "policy decision" of the trial court goes way beyond making rules regarding divorce and child custody. It was the court's general conclusion that it is better for children to attend public school than to be homeschooled - a conclusion that a trial judge has no competence to make, and that should be in the realm of the political departments, not the judicial (or better, left to individual parents to make). A judge has no business imposing these general views on litigants that happen to find themselves in her courtroom.

Mr. Esper - what evidence exactly was the trial court relying on? Just his or her own political views about education. And it is not all that difficult to homeschool - most states allow parents a right to homeschool their kids. There isn't much in the way of legal barriers most places. My understanding is that studies show homeschooling to be superior on average to public schooling. By contrast I think there still is a public preference for standard medicine over shamanism.
1.13.2009 9:43pm
unhyphenatedconservative (mail):
Plus there's the fact that a teacher and other school administrators provide an independent voice for the judge to look at, as in, is Dad really the drunken ass Mom claims or is Mom the abuser Dad claims? I love therapists for this reason too.
1.14.2009 12:29am
fortyninerdweet (mail):
I particularly enjoyed the dissenter's footnote when he said, "I am comfortable that this matter can be remanded to the same judge....." You made this mess, now clean it up. Too bad he was in the minority.
1.14.2009 3:13am
runape (mail):
You might also see PF v. NC, 953 A.2d 1107 - another critique (although not as central to the case) of home schooling.
1.14.2009 7:58am
FormerStudent:
Roger Schlafly

The problem here is that the judges are substituting their judgment for the parents'. If J. Markman cannot say whether public school is better or worse than homeschool, then how does he expect the lower court judge to make such a decision?


Well for starters the trial court judge might take evidence, and that evidence might permit him or her to determine whether in this particular case homeschooling is in the interests of the child, given the resources available to the mother, the particular needs of the child, the state of the local public schools, etc.

Taking evidence and making decisions based on evidence is sort of what trial courts are supposed to do. The appellate court might then review the record to determine whether the the trial court's ruling was supported by evidence. That sounds about like what an appellate court is supposed to do.

Also note that neither court is substituting their judgment for that of "the parents". If both parents had the same judgment there would be nothing for the court to decide.
1.14.2009 11:51am
whit:

Mr. Esper - what evidence exactly was the trial court relying on? Just his or her own political views about education


that's a big part of my problem. note also that this list of 4 is all one sided. one could just as easily make a list of reasons why homeschooling is preferred. here, i'll start.

1) a homeschooled child will have a much smaller class size and student:teacher ratio.

(note that educational unions frequently cite large class size and high student:teacher ratios as a detriment to learning, so this point is arguably more "evidence" based than the judge's list which seem to be more political and personal preference.)

feel free to add to the list.
1.14.2009 1:24pm
homeschool fan:
Mr. Esper -

I respectfully suggest that in many school districts, the public school teachers are the equivalent of the shamans. So I agree with your comparison; I just might align the comparatives differently.
1.14.2009 2:54pm
Duncan Frissell (mail):
Actually, homeschooling has fewer barriers than Public Schooling in most states.

*No vaccinations required.
*No proof of residency.
*No registration in many states and no physical registration (involving travel) in any states.
*No transportation costs (financial or physical).
*Reduced risk of death or injury in transportation accidents.
*Reduced risk of crime victimization (or, indeed, crime commission).
*24/7/365 Flextime (parent(s) and children can sleep in).
*Much less paperwork.
*No (or less) surrender of private information to agents of the state.
*Reduced clothing costs.
*Reduced expenditures for cosmetics, drugs, alcohol.
*Fewer occasions of sin.
1.14.2009 3:58pm
Brett Turner (mail):
See also Brown v. Brown, 30 Va.App. 532, 538, 518 S.E.2d 336, 339 (1999) (where father decided to home school children, and "[t]he children were performing well academically and socially in a home-schooling program approved by Loudoun County," trial court did not err by denying mother's motion that father be directed to enroll children in public school).
1.14.2009 5:49pm
newman (mail):
This snapshot, in my opinion, can also be connected to the potential changes occurring in the understanding of marriage itself.

It doesn't seem too far fetched to think that once "natural" biological relationships are replaced by "legal constructs" such as in Canada (c-38), our primary community will be the state and we will be above all else a ward of the state. Hence, i think the values of the state will become more influential in decisions such as the one above. (paraphrase of Nation of Bastards, p.63-64.)
1.14.2009 6:17pm
Roger Schlafly (www):
Taking evidence and making decisions based on evidence is sort of what trial courts are supposed to do. ... Also note that neither court is substituting their judgment for that of "the parents".
If a court tries to make a routine parenting decision by "taking evidence", then it is indeed substituting its judgment for that of the parents. Homeschooling is usually done for reasons where there there is no public consensus. If a judge makes a homeschooling decision, then he is applying his prejudices, not the evidence.
1.15.2009 1:23am
TruePath (mail) (www):
Dilan Esper


I don't think either conclusion is impermissible, as long as it is based on sufficient evidence.

Imagine if the issue were medical treatment for a child with special needs. And parent 1 wants to put the kid in a homeopathic, holistic medicine facility where the kid is treated by shamans. Parent 2 wants to hospitalize the kid in a public hospital.



Sufficient evidence of WHAT?

I mean suppose there was evidence that home schooled children earn less money and were more likely to commit suicide but also more likely to remain in the religion the parents both belonged to while married?

What if home schooling statistically made children happier because they were more likely to remain religious? Could the court favor homeschooling because it made them happier or could it favor public schooling as it made them more educated?

I could go on and on but the whole idea that there is some evidence out there for the judge to consult about these matters is bancrupt as ultimately the debate in these cases is a debate about values not consequences.

However, once you adopt a best interests of the child standard you just can't get around the values issue. The state has injected itself just as much into religion by deciding on the child's best interests without considering that one parent plans to convince them of false statements as it would by directly expressing a religious preference.


The right solution is for parties to draw up a (standard) document before conception dictating how any custody deciscion will be handled. Then again I also think that without legal documents signed men should have no (legal) responsibility for child support and no (legal) say in the child's upbrining.
1.16.2009 6:46am
Roger Schlafly (www):
The right solution is ...
It used to be that marriage was considered a contract in which the man accepts the rights and responsibilities of the resulting kids. Maybe we should return to that, with the state specifying standard terms and letting the couple sign a contract with different terms if they wish. That is not possible today.
1.16.2009 4:24pm

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