Record: Anthony Barone Kolenc, “Homeschooling and the Perils of Shared Parental Responsibility.” The Florida Bar Journal, 90, No. 9 (2016): 44-50. [Available Here]
Summary: Kolenc is a professor at Florida Coastal School of Law in Jacksonville, Florida. He is also a homeschooling father who has spoken at homeschooling conferences and contributed regularly to homeschooling magazines. In this article, he discusses the burden that homeschooling may place on shared parental responsibility and offers several suggestions for continuing to homeschool after a divorce.
Shared parental responsibility, also known as joint custody, is the legal framework that endows parents with a joint right to make important decisions about how their children will be raised. In the case that a couple separates, shared parental responsibility becomes difficult because of the fundamental disagreements that likely brought about the termination of the marriage. In Florida (the home of the author), courts take shared parental responsibility seriously, and they require that parents reach consensus on important matters when possible.
Home education is a source of disagreement because the non-homeschooling parent can easily resent the amount of influence that the homeschooling parent exerts over the child(ren) and the amount of time that they are able to spend together, fostering closer relationships. If the non-homeschooling parent suddenly wants out of this educational arrangement, deadlock can occur. This is what happened in the case of Hancock v. Hancock, 2005 in which the parents had mutually agreed that the former wife would homeschool the child. However, the father soon regretted that arrangement and asked that his child be enrolled in a public or private school.
The securest arrangement to ensure the continuance of homeschooling is for the homeschooling parent to obtain sole parental responsibility over the children. Once the parent has sole parental responsibility, courts will be reluctant to later give the other parent a say in educational decisions. For example, in Rust v. Rust, 1993, a Tennessee court allowed a woman with sole custody to continue homeschooling her child in spite of her ex-husband’s objection to home education. However, the challenge is that sole parental responsibility is difficult to obtain. In Florida, judges are advised to prefer shared parental responsibility unless the shared responsibility would be to the detriment of the child. Therefore, the best course of action for a homeschooling parent seeking a divorce is to mediate and get a legal agreement that the parent will homeschool the children. If the parent has already homeschooled the children successfully, the parent has a strong case to continue the practice. However, Kolenc notes with the case of Welch v. Welch, 2007 that even previous practice is not a sure-fire way to ensure the continuance of homeschooling.
Kolenc has three suggestions for maximizing the chances of continuing to homeschool after a divorce. First, the parent should ensure that the children are receiving a quantifiably top-notch education at home that is in compliance with all of the state’s homeschooling regulations. Second, the parent must be aware of the commonly-held belief that homeschoolers lack socialization and then demonstrate, through empirical evidence and participation in extracurricular activities, that this assumption is incorrect. Finally, attorneys representing homeschooling clients must demonstrate that homeschooling will not interfere with the other parent’s ability to have a full relationship with his or her child. The homeschooling parent should be prepared to demonstrate how he/she will keep the other parent informed of the child’s academic progress and content of the child’s schooling. Overall, the attorney should seek help from the Home School Legal Defense Association (HSLDA) to illustrate the legitimacy of homeschooling and the success that can come from it.
Appraisal: Divorce is messy, and homeschooling, like any major decision, is certain to cause controversy among some estranged couples. While Kolenc (2010-2011) and Russo (2011) have written on this topic before, the current article by Kolenc will probably be the most practical of the three for an attorney representing a homeschooling parent in a custody battle.
We might only add that HSLDA will likely not be of much help in such cases. The organization has always made it clear that their services do not include assistance with custody disputes. Homeschooling parents and the lawyers representing them in such cases do sometimes cite the research conclusions of the HSLDA-affiliated NHERI when arguing for homeschooling’s benefits, but such a tactic does not always work, as judges and sometimes even lawyers representing the homeschooling clients see this “research” for the thinly-disguised advocacy that it really is.
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