Home schooling and child custody

When parents split up, and there is a dispute over who is to get primary custody, judges generally decide this based on what they see as “the best interests of the child.” One recurring question is whether a judge may consider the ideology that a parent is teaching the child — for instance, may a judge say, “It’s in the child’s best interest to be raised by parent A, because parent B would raise the child to be racist / homophobic / pro-homosexuality / Communist / jihadist”? Another is whether a judge may prefer the parent who is more religious, on the theory that it’s better for a child to be raised with religious beliefs (or whether a judge may likewise prefer the parent who is less religious, on the opposite theory).

Some cases, though, ask whether a judge may prefer one parent over another because the preferred parent would send the child to a school (or perhaps even specifically to a public school), and the other parent would instead home-school them. I’ve blogged about this before; some cases have endorsed this non-home-school preference (see these cases from North Carolina and New Hampshire), one has expressly rejected it (this Pennsylvania case), and one is complicated (see the opinions in this Michigan case). I’ve just come across one more rejecting the non-home-school preference, Rocha v. Rocha (Kan. Ct. App. Aug. 8, 2014):

In granting joint custody of the children, but giving Robert residential custody, the trial judge ruled:

“Alright. Custody of the children…. I’m granting primary custody to Mr. Rocha for a number of reasons, one of which is your client, Mr. Probst, has made some interesting, I have to say bad or questionable choices over the pendency of this divorce. And I think that Mr. Rocha appears to be a more stable environment for the children. He also appears to understand that the benefits of education aren’t just what you learn, it’s — the socialization and interaction with other students, which are important, that cannot be achieved by home schooling.”

The trial judge also allegedly said — and this is the appellate court’s paraphrase — “that [the mother] is educating the girls for the Fifteenth Century, not the Twenty–First Century.” Here is the appellate court’s response:

The trial court’s statements that socialization and interaction with other students cannot be achieved by homeschooling are unsupported. We do not concur with the court’s statements as evident by the authority cited in the amicus brief [of the Home School Legal Defense Association] and also the facts of this case. While the guardian ad litem’s (GAL) report detailed Karen’s continued relationship with [Dragan] Subasic, her report also stated the children are “very polite, well-spoken, and well-behaved.” The GAL’s recommendation was “it is in the best interests of the minor children to remain here with their mother so long as there are boundaries and safeguards put in place.” There is no evidence to support the trial court’s homeschooling comments in this case.

The court of appeals nonetheless deferred to the trial court’s decision based on its non-home-schooling concerns (which apparently related to the mother’s interaction with Dragan Subasic, who apparently had a drinking problem, though the opinion is vague on exactly what Subasic may have done wrong). Still, the reasoning of the decision is firmly in the no-preference-against-home-schooling camp.

I should note that, if there is specific evidence that home-schooling is against a particular child’s best interests — for instance, the home-schooling is causing huge tensions between that parent and the child, or a child who had done great in school before is now doing poorly on tests while he is being home-schooled and there is reason to think that homeschooling is the cause — likely all courts would consider that as a factor against the homeschooling parent. (Conversely, if a child is thriving while being home-schooled by one parent, and the other parent seeks custody and would stop the home-schooling, that would likely be a factor in favor of the home-schooling parent.) The question here is whether, in the absence of evidence of specific harm or benefit from home-schooling, family court judges can rely on their own general estimation of whether home-schooling is usually better or worse for children than other schooling.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.
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