Posted by Eugene Volokh:
Home Schooling as Factor in Child Custody Decisions:
http://volokh.com/archives/archive_2009_01_11-2009_01_17.shtml#1231884696
My [1]October 2008 post on a case involving this subject drew a good
deal of reader interest, so I thought I'd note another case -- it's
from late November, but I just ran across it recently. Here are the
[2]Michigan Supreme Court opinions denying review (Taylor v. Taylor):
[Young, J., concurring, joined by Taylor, C.J., and Weaver and
Corrigan, JJ.:]
I concur in the order denying leave to appeal. According to the
record, the �lynch pin� of the trial court�s decision to send the
minor child to a public school was MCL 722.23(j), which considers
the �willingness and ability of each of the parties to facilitate
and encourage a close and continuing parent-child relationship
between the child and the other parent ....�
The record amply supports the trial court�s conclusion that the two
parents simply �do not communicate,� and that the mother�s desire
to homeschool the child would result in the father being precluded
from having any �say or involvement in his child�s education.�
While regrettable, I do not view the stray remarks of the trial
court, which appear to reflect a view of homeschooling as less
beneficial than a public school, as altering the legitimacy or
primacy of the trial court�s best interests determination.
[Markman, J., dissenting:]
I respectfully dissent. Instead of denying leave to appeal, I would
remand to the trial court for reconsideration of its order
resolving the parties� dispute concerning their child�s education.
The trial court resolved this dispute in favor of the public
schooling preferred by the father and in opposition to the
homeschooling preferred by the mother. Although I take no position
on the merits of the trial court's ultimate decision, I believe
that the court erred by at least appearing to take improper factors
into account in reaching this decision.
In particular, I believe that the trial court erred by appearing to
substitute its own generally unfavorable attitudes concerning
homeschooling for the public policies of this state, which accord
no preference for either public schooling or homeschooling. While
the trial court is entitled to its own views concerning the
respective merits of these educational approaches, it is not
entitled to replace the policies of Michigan with such personal
views.
Here, the court concluded with regard to the parties� six-year-old
daughter�s educational prospects that �she doesn't seem to have a
problem, I don�t believe, in being able to succeed anywhere,� but
then terminated the daughter�s homeschooling, asserting that her
interests would be best served by public schooling, in which both
parents could be involved. In the course of rendering this
decision, the trial court made the following observations:
1. Public schools would offer the child a �wider exposure� than she
would receive with homeschooling.
2. Public schools would offer �much more diversity, many more
opportunities with respect to the things that she would be able to
do.�
3. Although the court �appreciate[d] and respect[ed] [the mother�s]
desire to have a religious-based schooling, we live in a very
diverse society and it is not beneficial for children to be raised
in a bubble where they do not have exposure to other people�s
cultures and other people�s religion.�
4. Public schooling would make the child �a more well-rounded
person.�
Each of these observations may or may not be true, or relevant.
However, taken as a whole, they evince an attitude toward
homeschooling (and public schooling) that is simply not reflected
in the laws and policies of this state. Taken as a whole, these
observations suggest a predisposition by the trial court that,
everything else being equal, public schooling is invariably
preferable to homeschooling, a predisposition that would presumably
also counsel in favor of public schooling in future disputes in
which parents disagreed on approaches to their children�s
education.
Upon remand, I would direct the trial court to resolve the instant
dispute in a manner that is not grounded on a predisposition toward
either public schooling or homeschooling. I would require the trial
court, as it has done with regard to the other statutory factors
set forth in MCL 722.23(h), to assess the best interest of this
child in terms of her particular educational needs. While there
conceivably may be circumstances -- pertaining either to the child,
her parents, her parents� relationship, or the available schools --
that would counsel in favor of public schooling or homeschooling in
the instant case, these need to be set out with specificity and
without reference to any predisposition toward either public
schooling or home schooling.
[Footnote:] Although it may be true, as the Court of Appeals
suggests, that the trial court�s decision on the child�s education
was �not based on a bias against home schooling,� such conclusion
entails speculation and conjecture in light of what was actually
stated. Similarly, it is conjecture and speculation that these
statements constituted mere �stray remarks,� as the concurring
statement asserts. If the Court of Appeals, and the concurring
statement, are correct in these assessments, the trial court, on
remand, could make this clear. I am comfortable that this matter
can be remanded to the same judge for further consideration.
The court of appeals decision is [3]here.
References
1. http://volokh.com/posts/1224892991.shtml
2.
http://coa.courts.mi.gov/documents/sct/public/orders/20081121_s137258_57_137258_2008-11-21_or.pdf
3.
http://coa.courts.mi.gov/documents/OPINIONS/FINAL/COA/20080729_C281555_53_281555.OPN.PDF
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