May-June 2005 Selected Content
Taking Charge - Larry and Susan Kaseman
How Rulings in Homeschooling Custody Cases Affect Us All
Homeschooling sometimes becomes an issue for a divorced homeschooling parent whose ex-spouse opposes it. Homeschoolers who turn such conflicts over to attorneys and the courts find that most attorneys and judges know little about homeschooling and many are biased against it. Judges often rule that parents can only homeschool if they agree to do more than is required by the state homeschooling law. This can be a serious blow to families. It also sets legal precedents that give the state greater control over homeschooling and undermine the homeschooling freedoms of all of us. Fortunately, homeschoolers involved in custody disputes and their supporters can work to prevent this from happening. They can try to avoid going to court. If court becomes inevitable, they can carefully choose an attorney who will work with them to build a strong case that gives them a much better chance of a favorable ruling.
This column presents ways parents can increase the likelihood of rulings that support homeschooling. Its goal is to increase your understanding of the interaction between homeschoolers and the judicial system, whether you are personally involved in a custody and/or placement dispute, are helping someone who is, or want to be better informed about maintaining homeschooling freedoms. The approach presented here is a specific example of how we homeschoolers can use laws to protect our rights and freedoms. For readability, it is written as if it were addressed to parents involved in a custody dispute that includes homeschooling.
Why Homeschooling Becomes an Issue in Custody Cases
Identifying the causes of a custody dispute over homeschooling is often a helpful first step. Parents who previously supported homeschooling may develop doubts when they have less involvement in their children's daily lives. Parents who had doubts about homeschooling or opposed it before the divorce may increase their efforts to get their children into a conventional school. Parents who do not have custody and/or placement rights may feel that the homeschooling parent should put the kids in school and get a job to contribute to the family's income and perhaps also reduce the need for them to pay child support. General tensions between parents may spill over into homeschooling. Remarriage may introduce an adult who opposes homeschooling.
Staying Out of Court
Many parents facing custody questions recognize many advantages to resolving them out of court. They have more flexibility, freedom, and choice if they make their own agreements instead of being restricted by court rulings they have to obey, even if both parents later decide the rulings are a mistake. Therefore, some divorced parents set aside animosities and develop an agreement, sometimes with the help of a mediator or other neutral third party. The parent who wants to homeschool may present a few basic reasons for homeschooling. They may ask the opposing parent why they are objecting to homeschooling and see if there are reasonable ways to resolve the objections. (Some parents would find it unreasonable to have to agree to follow a curriculum they did not like, have the children tested, or other such possibilities.) Some opposing parents are willing to agree to homeschooling for a limited amount of time, such as a year, and then reevaluate. Staying out of court also saves a lot of time and money and avoids the tensions surrounding court appearances that affect children as well as parents.
When Going to Court is Unavoidable
Homeschoolers who go to court face a number of hard realities; it helps to understand them.
• Your ex-spouse may use your pro-homeschooling arguments against you in court. As soon as it's clear that court is unavoidable, many homeschoolers stop discussing homeschooling with their ex-spouses. The harder a homeschooling parent tries to convince an opposing ex-spouse, the more opportunity the ex-spouse and their attorney have to prepare counter-arguments to use in court. It is better to save information that supports homeschooling to present in court.
• It's a big mistake to assume that court commissioners and judges are wise about educational law, including homeschooling law, and that you'll get fair treatment based on their knowledge. (Note: Court commissioners often make first level rulings in family and juvenile courts. Unless they are challenged, their rulings have the same force as those by judges.)
To complicate matters further, judges and court commissioners in juvenile and family courts often view their role as helping families, somewhat as social workers do, rather than focusing primarily on the law. Unless you work with your attorney and insist that courts make their rulings consistent with the law, they are likely to use their "common sense and world experience" (as one court commissioner put it) to do what they think is in the best interest of the child, regardless of the law and of the strengths of homeschooling, which they probably don't understand. To make matters worse, such cases are seldom appealed, so rulings based on "common sense" become precedents and the basis for future rulings.
• It seldom works to turn your case over to an attorney. They are likely to approach it like a non-homeschooling case. It may be more important to them to maintain their on-going relationships with judges, court commissioners, and other attorneys than to go out on a limb for someone with a "weird" approach to education.
• Initial rulings often go against homeschoolers and an appeal is necessary.
Choosing and Working with an Attorney
Tempting though it is for distressed and weary homeschoolers to turn their case over to an attorney, those who take responsibility for their cases, play an active role, and perhaps work harder than their attorneys are more likely to secure a favorable outcome. Among the reasons: Understandably, parents care more about their cases than their attorneys do. Parents and their children will be much more strongly affected by the outcome than their attorneys. Parents have greater incentives than the money that is a primary motivation for attorneys. Homeschoolers understand homeschooling and homeschooling laws and regulations better than most attorneys. Homeschooling makes sense to them, so they are in a better position to explain and defend it than an attorney who knows little about it, has little or no personal experience homeschooling, and perhaps is even skeptical or downright critical of this approach to education.
In communicating with an attorney you're considering hiring, you may want to say something like the following:
I want to hire an attorney who will listen to me, follow my lead, and help me navigate the legal system. Unlike many clients, I want to be actively involved in determining the direction of my case. I don't want to just turn my case over to an attorney. I have a lot of information about homeschooling, homeschooling laws, and other education laws. I want this to serve as the foundation of my case to minimize the chances that a judge will rule on the basis of their personal feelings about homeschooling. Therefore, I do not necessarily need an attorney who has personal experience with homeschooling or professional experience with homeschooling cases. I want my attorney to work to get what is important to me (for example, avoiding requirements that my children take standardized tests that are not required of other homeschoolers in our state) whether or not they personally agree with my principles and perspectives. I want to review all documents before they are submitted to the court or anyone else. Are you willing to work with me on this basis? If not, can you suggest an attorney who might be?
When you find an attorney, you might draft a letter of understanding that you can refer to and remind your attorney about, if they start acting in ways that depart from the agreement without good reason.
Developing a Strong Case Based on Laws
Homeschoolers can insist that their attorneys prepare their case based on the laws discussed here, educating judges about these laws if necessary.
(1) Your state's homeschooling law is critical. Get a copy of the law and be very familiar with what it requires and does not require. A good source of information is a statewide inclusive grassroots homeschooling organization. If such an organization does not exist, look on the Internet for state statutes pertaining to homeschooling and ask experienced homeschoolers in your area. Do not ask your local school district or the state department of education. They are unlikely to understand the law as well as experienced homeschoolers do, and they are likely to give you an interpretation that works against you. You also need to understand the importance of complying only with the minimum that the law requires and not setting precedents that will undermine homeschooling freedoms by voluntarily doing more than the law requires. Knowing specifically what the law requires will give you confidence and reassurance that the decision you are asking the court to make is reasonable and legal.
Note that you can save money on attorney's fees (which can be significant) by researching laws yourself instead of paying your attorney to do it. If your state has a grassroots organization that has published a handbook or other information about the law, it can save you a lot of time and money. In return, support the organization by becoming a member, so it can continue its work.
(2) The compulsory school attendance law requires attendance; it does not require compulsory education. It is difficult to overestimate the importance of this distinction. It gives a judge the authority to require you to show that your children are attending a homeschool, but not that your children are achieving a certain educational level. Judges exceed the law if they rule that students who do not achieve a certain level must take additional tests, attend a conventional school rather than being homeschooled, or other consequences.
Despite the distinction between compulsory attendance and compulsory education, the court may rule that you do more than your state's homeschooling law requires. For example, the court may rule that your children take more standardized tests than the law requires (if it requires any tests; about half the states require testing of homeschooling and half do not) or that they achieve certain scores that are not required of other homeschoolers. If you receive such a ruling, it's up to you to work with your attorney to educate the court about the fact that the law requires compulsory attendance but not compulsory education and try to get the ruling reversed. You can explain that such requirements are not being made of children attending public schools or conventional private schools and are, therefore, discriminatory. For example, judges do not rule that children attending public schools who are not testing well for their ages must attend a conventional private school or homeschool.
(3) Homeschools are private schools. This is true even in states where the statutes call them something else. Whatever they are called, homeschools are privately operated, do not receive tax dollars, and are private schools. Therefore, the most that could reasonably be expected of homeschools is what is required of other private schools (plus any specific requirements in your state's homeschooling law). In fact, very few private schools are required by law to have certified teachers, administer standardized tests, have their curriculums reviewed or approved by public school officials, or submit reports and records or public school officials.
The Question of Testing
Requiring children to take standardized tests to determine whether they are learning seems reasonable to many people, including some homeschoolers. Testing is often suggested as a compromise and a way that the homeschooling parent can demonstrate to the opposing parent that homeschooling is working. Judges often automatically require that homeschoolers take tests.
However, testing has so many drawbacks that most homeschoolers continue to oppose it. Among the reasons:
• Tests dictate curriculum. State-mandated tests, in effect, turn homeschools into mirror images of public schools, thereby usurping fundamental freedom of choice in education.
• Agreeing to academic testing opens the door for psychological testing. If children are labeled "learning disabled" or "ADHD" or "on the autism spectrum," it is more difficult to get permission from a court to homeschool them without undue restrictions, even if the labels are inaccurate.
• Standardized tests do not measure what someone has learned. They only measure how well someone performed on a given test on a given day. Some children are simply not good at taking tests.
• To require homeschoolers whose parents are divorced to take more tests or score higher than other homeschoolers is highly discriminatory and violates the statutes.
• The more judges rule that homeschoolers from divorced families must take more tests than are required by the state homeschooling law, the closer we move to increased testing of all homeschoolers and use of the results to force homeschoolers out of homeschools.
When divorced parents go to court to try to resolve their conflicts over homeschooling, courts often rule that homeschoolers must do more than is required by the homeschooling law in their state. This limits the family's ability to homeschool and sets precedents that undermine our homeschooling freedoms. We can minimize such precedents by working to ensure that court cases are decided on the basis of the law and not the biases and prejudices of attorneys and judges.
© 2005, Larry and Susan Kaseman
Read more about Homeschooling, Homeschooling and Divorce and the affect of a Homeschooling Custody Case