{"id":456,"date":"2012-12-04T14:47:11","date_gmt":"2012-12-04T14:47:11","guid":{"rendered":"http:\/\/icher.org\/blog\/?p=456"},"modified":"2014-05-29T18:05:21","modified_gmt":"2014-05-29T18:05:21","slug":"when-i-do-becomes-you-wont-homeschooling-and-divorce","status":"publish","type":"post","link":"https:\/\/icher.org\/blog\/?p=456","title":{"rendered":"WHEN ‘I DO’ BECOMES ‘YOU WON’T’: Homeschooling and Divorce"},"content":{"rendered":"

Record:<\/strong> Anthony Barone Kolenc, \u201cWhen \u2018I Do\u2019 Becomes \u2018You Won\u2019t!\u2019\u2013Preserving the Right to Home School After Divorce\u201d in Ave Maria Law Review<\/em><\/a> 9, no. 2 (2010-2011): 263-302.<\/p>\n

Summary: <\/strong>Kolenc<\/a> is a professor at Florida Coastal School of Law, homeschooling father of five, was until very recently author of the monthly column \u201cLegally Speaking\u201d in The Old Schoolhouse <\/em><\/a>magazine and is now writing a legal column for the magazine Practical Homeschooling<\/em><\/a>.\u00a0 Here he constructs a legal argument aimed at helping divorced homeschooling parents involved in custody disputes.<\/p>\n

Kolenc begins with the Kurowski<\/em> case. Here\u2019s a summary of the facts of the case:<\/p>\n

The Kurowskis divorced in 1999.\u00a0 In 2005 the mother began homeschooling their daughter.\u00a0 The father, who had joint custody, didn\u2019t approve, citing socialization concerns.\u00a0 Lower courts rejected his complaints.\u00a0 In 2007 the father requested the court to appoint a \u201cGAL,\u201d or guardian ad litam<\/em>, who could safeguard the child\u2019s best interest.\u00a0 He believed that the homeschooling was weakening his relationship with his daughter because it was creating exclusive mother\/child bonds grounded in the mother\u2019s fundamentalist religion.\u00a0 The court appointed a GAL, who recommended that the father be granted expanded visitation rights and that he have a say in the child\u2019s educational and religious training.\u00a0 The child began attending three classes in a public school in 2010.\u00a0 The mother tried to get this changed, but the lower court rejected her efforts.\u00a0 She appealed to the State Supreme Court.<\/p>\n

New Hampshire\u2019s highest court unanimously agreed with the lower court\u2019s decision.\u00a0 The State Supreme Court held that this was not a case about homeschooling or about religion, but only about what is to be done when two parents with equal constitutional rights and interests in their child\u2019s education disagree.\u00a0 And the Court basically said that in such cases homeschooling does not automatically win.\u00a0 The lower court decided that public school was in the child\u2019s best interest, and the higher court saw no reason to challenge this conclusion.<\/p>\n

Kolenc notes that with homeschooling growing and with divorce rates high, such conflicts are likely to increase in frequency.\u00a0 What is the best way for courts to deal with them?<\/p>\n

Kolenc begins his answer with an admirably clear summary of the issues at stake in two common defenses homeschoolers make in court.\u00a0 The first is the notion that homeschooling is part of the fundamental parenting rights established by the Meyer <\/em>and Pierce<\/em> decisions of the 1920s.\u00a0 The second is the claim that at least religiously-motivated homeschooling is a constitutional right due to the First Amendment\u2019s protection of religious liberty.\u00a0 Kolenc doesn\u2019t here spell out his own views on these controversial issues.\u00a0 He just tells us, quite correctly, that there is not a lot of clarity or consistency in the lower courts\u2019 responses to these claims.<\/p>\n

Kolenc next discusses three responses courts often give to these two claims homeschoolers make.\u00a0 First, homeschooler claims to fundamental parenting rights and religious freedom rights don\u2019t work in these custody cases because the non-homeschooling parent also<\/em> can make these claims, leading to a stalemate.\u00a0 That\u2019s what happened in New Hampshire in the Kurowski<\/em> case.\u00a0 Here Kolenc does give his own opinion, which is that courts shouldn\u2019t be the ones adjudicating these parenting disputes.\u00a0 The court isn\u2019t qualified to dispense parenting advice like deciding when a child be allowed to date or what clothes to wear.\u00a0 Neither, argues Kolenc, does it have the right to choose which form of education a child should receive.<\/p>\n

Second, courts can and do appeal to the doctrine of Parens Patriae<\/em><\/a> to argue that the state has a legitimate interest in regulating the education of its citizens.\u00a0 Kolenc ably summarizes here the side of the Pierce<\/em> decision that homeschoolers often leave out\u2013that the same decision that established a parent\u2019s right to direct the course of a child\u2019s education also said explicitly that government has a right to regulate education.<\/p>\n

Third, many courts have responded to First Amendment claims by simply not finding that religious freedom is being violated by public schooling.\u00a0 Kolenc gives several examples here.\u00a0 In Kurowski<\/em> the judge held that the mother would still have plenty of time to inculcate religious principles in her daughter after school.<\/p>\n

Given that the usual defenses homeschoolers make don\u2019t typically work in court, what should homeschoolers do?\u00a0 The rest of Kolenc\u2019s article shifts from legal analysis to something more like legal advice.\u00a0 Assuming an audience of homeschoolers who are trying to win in court, Kolenc explains for them six key issues of which to be aware in a custody dispute:<\/p>\n

1. The Custody Factor<\/em>.\u00a0 Divorcing parents who want to homeschool should do everything they can to get sole custody, for if they do they\u2019ll be much more likely to get their way in a dispute.\u00a0Kurowski was a joint-custody case.\u00a0 But Kolenc gives a few examples even in sole custody situations where the custodial parents\u2019 educational decisions were successfully challenged by the other parent.<\/p>\n

2. The \u201cJudicial Prejudice\u201d Factor<\/em>.\u00a0 Basically, a lot of judges are still prejudiced against homeschoolers, especially conservative religious homeschoolers.\u00a0 Kolenc provides several powerful examples of judicial bias against homeschooling, and of higher courts recognizing and overturning it.<\/p>\n

3.The Education Factor<\/em>.\u00a0 Here Kolenc says that homeschoolers need to convince the judge that homeschooling is good education.\u00a0 They do this by bringing in expert testimony.\u00a0 Experts have shown that homeschoolers do better on standardized tests and get into better colleges than kids who go to public school regardless of race or social class.\u00a0 This is of course not true, and the sources Kolenc cites to bolster his claims are dated or based on non-representative samples or both, but it\u2019s a very common claim made by homeschooling advocates who conduct \u201cresearch\u201d for precisely this reason\u2013to convince judges in court that what they\u2019re doing is good.<\/p>\n

4. The Socialization Factor<\/em>.\u00a0 Same as the education factor.\u00a0 Convince the judge that homeschooling = good socialization through expert testimony and academic research that has proven that to be the case.\u00a0 Again, the literature here is much more ambiguous than Kolenc would have us believe, but I suppose the judge doesn\u2019t have to know that.<\/p>\n

5. The \u201cParental Strife\u201d Factor<\/em>.\u00a0 Kolenc cites here many, many cases that collectively show that the parent who is most abrasive, inflexible, and intolerant tends to lose.\u00a0 This is often the parent with the more conservative religious beliefs, which judges often find to be bad for the child in that they turn education into indoctrination.\u00a0 Kolenc\u2019s advice here is for parents who wish to homeschool to do their best to include the other parent in the educative process if he or she so desires, and to mount a case for why public<\/em> schooling would not be in the best interests of the child in this particular case.\u00a0 He counsels against homeschoolers digging in their heels and arguing in front of the judge that God demands homeschooling or that the other parent is exposing the child to sinful things or whatever.\u00a0 Judges have a tendency to decide against people they think are religious extremists.\u00a0 So don\u2019t act like one. Try to convince the judge that you are the sane, flexible, open-minded one who just wants what is best for the child.<\/p>\n

Appraisal:\u00a0<\/strong> I was pleasantly surprised at the even-handedness of Kolenc\u2019s treatment of the issues he raised in the first part of the article.\u00a0 He\u2019s clearly a homeschooling advocate reflecting a conservative Catholic point of view.\u00a0 But unlike many other activist lawyers, he is honest about the limits of some of the constitutional claims homeschoolers often make and aware of the other legal principles that problematize such claims.\u00a0 I wish he had the same nuanced understanding of the academic achievement and socialization literature.\u00a0 Readers wanting more on those topics can consult the FAQ section<\/a> of the ICHER website or click on the relevant categories to the right for reviews of other articles on these topics.<\/p>\n

For the target audience of homeschoolers going through a custody dispute this is doubtlessly a very valuable piece.\u00a0 HSLDA has always been clear that it will not directly represent members involved in a custody dispute.\u00a0 Kolenc\u2019s sensitive discussion of the complexities involved in such cases suggests why, and his advice to homeschoolers finding themselves in this situation is wise and helpful.<\/p>\n

Milton Gaither, Messiah College, author of Homeschool: An American History<\/a>\"\"<\/em>.<\/p>\n

Disclaimer<\/strong>:\u00a0 The views expressed in reviews are not the official views of ICHER or of its members.\u00a0 For more information about ICHER\u2019s Reviews, please see the \u00ab\u00a0About these Reviews \u00bb Section.<\/p>\n","protected":false},"excerpt":{"rendered":"

Record: Anthony Barone Kolenc, \u201cWhen \u2018I Do\u2019 Becomes \u2018You Won\u2019t!\u2019\u2013Preserving the Right to Home School After Divorce\u201d in Ave Maria Law Review 9, no. 2 (2010-2011): 263-302. Summary: Kolenc is a professor at Florida Coastal School of Law, homeschooling father … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":"","_links_to":"","_links_to_target":""},"categories":[3,11,16],"tags":[402,403,423,424,63,355,122,279,406,1094,404,405],"class_list":["post-456","post","type-post","status-publish","format-standard","hentry","category-academic-achievement","category-legal","category-socialization","tag-anthony-barone-kolenc","tag-ave-maria-law-review","tag-gal","tag-guardian-ad-litam","tag-hslda","tag-in-re-kurowski","tag-meyer-v-nebraska","tag-parens-patriae","tag-pierce","tag-practical-homeschooling","tag-saint-leo-university","tag-the-old-schoolhouse"],"_links":{"self":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/456","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=456"}],"version-history":[{"count":9,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/456\/revisions"}],"predecessor-version":[{"id":1307,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=\/wp\/v2\/posts\/456\/revisions\/1307"}],"wp:attachment":[{"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=456"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=456"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/icher.org\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=456"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}