Homeschooling and the perils of shared parental responsibility.

• Author: Kolenc, Antony Barone
• Position: Florida

Each year, increasing numbers of Floridians choose home education, with more than 75,000 students in the state currently taught at home. They follow in the steps of the nation's founders and such great figures as Abraham Lincoln, Thomas Edison, and Andrew Carnegie, to name just a few. Nationwide, Florida has garnered a reputation as one of the friendliest states for homeschoolers. Families can choose from several statutorily recognized options, (1) placing them on the same legal footing as those who send their children to public or private brick-and-mortar schools. This decision to homeschool goes far beyond pedagogy, triggering major lifestyle changes for parents and children alike. Not only do they spend vast amounts of time together seven days a week, but they enter a distinctive subculture with specialized support groups, athletic leagues, social events, and political action networks. Precisely due to the pervasive nature of this way of life, when parents in these families separate, Florida's ideal of "shared parental responsibility" poses a particular danger to continued home education. Practitioners who counsel clients in these cases should familiarize themselves with the recurring issues and the systemic realities that can have a significant impact on the outcome of child custody litigation.

The "Problem" of Shared Parental Responsibility

The legal framework for shared parental responsibility grew from its roots in the natural law and the inherent order in creation that endows parents with a joint right to make critical choices about how their children will be raised. (2) Florida law reflects this ideal in its presumption in F.S. [section]744.301(1) that "parents jointly are the natural guardians of their own children and of their adopted children, during minority." This continues even after the parents' partnership dissolves, as noted in F.S. [section]61.13, "the public policy of this state [is] to assure each minor child frequent and continuing contact with both parents after the parents have separated or dissolved their marriage and to encourage parents to share the rights and responsibilities of childrearing." In accord with this policy, F.S. [section]61.046(17) defines shared parental responsibility as a "court-ordered relationship in which both parents retain full parental rights and responsibilities with respect to their child and in which both parents confer with each other so that major decisions affecting the welfare of the child will be determined jointly." In those states that still use the terminology of "custody" (e.g., "sole custody"), this is most similar to the notion of "joint custody." (3)

In the modern world of no-fault divorce and transient partnerships, the shared parenting ideal places homeschooling peculiarly in jeopardy when parents separate. The parents have likely disagreed about a great many things to bring them to the painful choice to end their relationship. Often these differences are prominent regarding child-rearing and fundamental values. Simple parenting decisions become complex in these failed romantic relation ships, especially when the realities of homeschooling are added to the mix. Florida courts take shared responsibility seriously, insisting that parents not only confer on important matters relating to their children but also that they reach consensus when at all possible. (4) Still, it is not uncommon under these circumstances for decision-making deadlock to occur.

Consider the classic home education scenario, where children remain at home and one parent takes on the chief schooling duties. The parent who takes on the primary role will likely teach from textbooks and workbooks like any educator. Moreover, he or she will operate as the grader, disciplinary dean, and school principal. Even in today's computer-heavy climate, where much learning takes place online, that parent will explain or clarify the material and generally supervise the homeschool. That same parent may also engage with the children in many of their homeschool-specific activities, such as support groups, play dates at the park, cooperative teaching, enrichment classes, field trips, and religion-related events. In addition, that same parent may retain some or all of the traditional parenting roles--those that non-homeschooling parents typically perform outside of school, such as ensuring household chores are completed, coaching sports teams, and transporting children to extracurricular activities like Boy Scouts or ballet. The level of contact with the children, especially for the primary educator, is extensive.

Now imagine that same life after the parents have dissolved their relationship. If home education continues, it would make the most sense for the children to reside a majority of the time with their primary teacher. But in this arrangement, the other parent may feel like an outsider as the children spend most days and nights away. All aspects of the kids' lives would seem to revolve around their chief educator. One can understand how the other parent, no matter how self-secure, could lament this situation, pondering whether the homeschooling parent is gaining an unfair emotional advantage, bonding with the children, and disproportionately influencing their lives and values. The other parent suddenly wants out of this educational model; deadlock results.

Divided parents notoriously have difficulty with the ideal of shared decision-making due to the animosity, poor communication, and spitefulness that often accompanies the breakdown of relationships. Emotions run high and positions harden. Unfortunately for the homeschooling parent, when discontent leads to deadlock, home education is often the casualty. Hancock v. Hancock, 915 So. 2d 1277 (Fla. 4th DCA 2005), presents the typical fact pattern. In that case, the parents "had mutually agreed the former wife would" homeschool the child during his "early education." (5) The divorcing father (an attorney) soon regretted that preordained arrangement and sought a neutral teacher other than his estranged spouse. During dissolution he "requested the court 'to require the [w]ife to enroll the minor child in a private [or] public school,'" and the court remanded the case to consider the issue. (6) One cannot complain when, as here, a court must intervene to decide fundamental matters: Because these cases involve "competing rights of parents to their child in a divorce situation," such a complaint would be deemed "frivolous." (7)

Fighting for Sole Parental Responsibility?

When divided parents share decision-making, deadlock over homeschooling can occur all too easily. In light of that risk, an attorney advising a parent seeking home education will quickly realize the securest arrangement for the client will be to gain "sole parental responsibility" over the children, defined by F.S. [section]61.046(18) to mean "a court-ordered relationship in which one parent makes decisions regarding the minor child." A parent with sole parental responsibility will have nearly carte blanche authority over the decision to homeschool, along with all other aspects of child-rearing. If the other parent wants a say in the education decision later, courts will be reluctant to change the status quo. For example, in Rust v. Rust, 864 S.W.2d 52 (Tenn. Ct. App. 1993), the Tennessee court refused to force a mother with sole custody to send her child to public school despite her ex-husband's objection to home education. (8) The court would "not second-guess" the mother's homeschooling decision because the decree of sole custody gave her complete parental power on matters of education. (9)

The problem with seeking sole parental responsibility, of course, is that it is likely unattainable. That decision will...