Contributor, The Volokh Conspiracy

An interesting home-schooling family court case, J.E.R., Jr. v. J.F.M., 2013 WL 11271525 (Pa. Super. Ct.): The mother of a 12-year-old girl had sole legal and physical custody. From when the child was 8 to when the child was 11, the mother and father had shared custody, but then the father’s custody rights were indefinitely suspended. The mother wanted to home-school the child; according to the trial court, the mother was “deeply religious and believes that those who do not practice her conservative Christianity are inherently immoral and corrupt. Historically, [the daughter] has been isolated, and her only significant source of interaction has been in the context of church or Church based activities.”

The father argued that Daughter should be sent to public school. (Part of the father’s reason for this seems to be his disapproval of mother’s religion, and indeed skepticism about Christianity and religion more broadly: In a different lawsuit, he argued that the mother “teach[es] the minor child that a snake can talk to a man, and that even though the New Testament was written by unknown people 500 years after the death of the disciples, the minor child should live her life based on these theories and concepts. [Mother and her family want Daughter] to abandon science and technology, and to believe only in religious dogma.”) Heather E. Roberts, whom the trial court appointed to represent Daughter, also concluded that Daughter should be sent to public school; the trial court agreed with father and Roberts on this score. But the appellate court reversed the trial court’s order:

With any child custody case, … the paramount concern is the best interests of the child…. [Footnote: [I]n custody cases involving a parent with sole physical custody there is a presumption that the parent is acting in the best interests of the child and a third party must rebut that presumption by clear and convincing evidence. See 23 Pa.C.S.A. § 5327(b).] …

Mother argues “the trial court is dictating to Mother how to raise her daughter.” Mother contends she should be able to home school [Daughter], so that [Daughter] can “be protected from [ ] negative influences until [she is] older and mature enough to resist [ ] negative influences.” Mother further supports her argument by noting the following[:]

[Mother] home schooled [Daughter] up until 6th grade, when she was ordered to enroll [Daughter] into public school by Judge Kelley after a custody hearing. Before that time, Mother had always complied with Pennsylvania law concerning home schooling. [Daughter] was socialized by being heavily involved in church youth group, choir, activities with her five siblings and neighborhood children, and regular involvement in field trips. [According to a brief in the case, the five siblings are mother’s children with her current husband, age 1 to 7 at the time. -EV]

… [T]he trial court note[d] Mother is competent, willing, and able to make the decisions regarding [Daughter]’s education, and appear[ed] to concede that Mother is “acting in the child’s best interest regarding all educational matters for the child[.]” Upon review, we further conclude that to the extent the trial court conducted a best interests analysis, the evidence fails to show public schooling is in [Daughter]’s best interests. Absent clear and convincing evidence to the contrary, the trial court cannot usurp Mother’s authority to make such decisions for her child….

Attorney Roberts argued that homeschooling was not in [Daughter]’s best interest because [Daughter] had apparently been testing below her ability when she began public school, and she needed socialization…. However, Attorney Roberts did not admit a … transcript from home schooling [to compare with the Daughter’s public school transcript], or any evidence to establish that home schooling was not meeting [Daughter]’s educational needs or otherwise was not in her best interest. Also, Attorney Roberts noted that during [Daughter]’s one year in public school [Daughter] began cutting herself. [Text moved: In response to questions about cutting herself, [Daughter] indicated she did it “because my friends were doing it and it doesn’t really hurt.” Specifically, [Daughter] mentioned that she had made mostly “gothic” friends.]

In response, Mother testified that the homeschooling program is in connection with the public school, that [Daughter] would be issued a report card, and that the program was appropriate to prepare her daughter for college. Additionally, as to socialization, Mother stated [Daughter] was involved in soccer, youth group, home economics, choir, and cake decorating classes. Mother went on to express her concerns about the friends [Daughter] had made in public school, as well as [Daughter]’s issues with cutting herself.

Mother stated that [Daughter] became very rebellious during her time in public school, and offered the following three examples. First, [Daughter] is supposed to wear skirts to school but snuck in pants to change into. Second, [Daughter] hid an iPod from her Mother that someone had bought her containing music of which Mother disapproved. Third, [Daughter] threw a birthday party for herself and her friends at a rolling skating rink.

Mother argued that [Daughter] was 12 at the time of the hearing, living in Mother’s house, and subject to her authority. In response, the trial court stated, “[r]ight, but here’s the thing. She’s in your house and she’s under your authority, but perhaps she feels that your authority isn’t just.” While this may be true, the uncontested evidence of [Daughter]’s disobedience to parental authority while at public school does not support a best interest analysis for ordering [Daughter] to be enrolled in public school against Mother’s wishes. Additionally, while a child’s preference shall be taken into account, “[t]he weight to be accorded to a child’s preference varies with the age, maturity and intelligence of that child, together with the reasons given for the preference.” …

Despite the fact [Daughter] may desire to attend public school, the facts of record do not suffice to show that public schooling is in [Daughter]’s best interest. Thus, we cannot agree with the trial court’s conclusions that home schooling, per Mother’s wishes, is not in [Daughter]’s best interest….

Based on the foregoing, we conclude the trial court abused its discretion in ordering [Daughter] attend public school.

Judge Strassburger concurred, with a short separate opinion:

Mother has full physical and legal custody of [Daughter]. It is not the function of a trial court or this Court to micromanage how she raises her daughter, including how she is schooled…. “[I]n the end we would do Children more harm than good by assuming the day-to-day parenting decisions, a function we are ill-equipped to carry out…. To decide otherwise is to inappropriately micromanage this family.” … If a parent’s schooling decisions are so far off the reservation that the child is endangered, e.g., the parent sends the child to boarding school run by the Manson family, then the dependency concept can handle the matter. Short of that, courts should stay on the sidelines.

There also appears to be a racial dimension to the father’s objections, judging from a separate lawsuit that he filed: The father is black, the mother is white, and the father was upset that the daughter is being “isolate[d] … from black society,” and is being “brainwash[ed] … to eat, drink, sleep, and think white.” But the appellate court didn’t discuss this issue, and it appears that the father didn’t raise it in this litigation.