New Hampshire Supreme Court to release opinion in New Hampshire home-school case tomorrow

Tomorrow, March 16, 2011, the New Hampshire Supreme Court will issue its opinion in the New Hampshre homeschooling case. The case of Martin Kurowski and Brenda Voydatch has grabbed national headlines and sparked much debate about the right to home-school. In this matter, a divorced mother and father could not agree on whether their daughter should be home-schooled by the mother,  and so a trial was held and a judge issued an order requiring the child to attend public school. The mother appealed, arguing, among other issues, that she has a consitutional right to home school her child.

The Supreme Court heard oral arguments in this matter on January 6, 2011. The justices asked some hard questions and made some interesting points, including:

  • On the issue of a constitutional right to home-school, Justice Lynn asked the mother's attorney: The cases you cite were state v. parent, but in this case the state has been forced to settle a dispute between to parents, is there not a difference?
  • Justice Dalianis questioned whether the Court needed to decide the constitutional issue of home schooling if the court decides that the trial court's order was a modification subject to the Muchmore standard.
  • Justice Duggan asked the mother's attorney how schooling is a religious right. Further, "if there is no constitutional right to home-school, do you lose?"
  • Justice Conboy distinguished residential and decision making responsibility, and questioned whether the modification standard applies when the court has to settle a decision making dispute. She asked, "if the parents have joint decision making and they do not agree, then what happens?"

Check here on March 16th for the opinion. For links to the parents' appellate briefs, click here.

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Adriana - March 16, 2011 8:50 PM

Answer to the question, "if the parents have joint decision-making and they do not agree, then what happens?": they spend the rest of their co-parenting years in court. So tragic for all concerned. Typically far more destructive than the impact of any of the disputed choices, the ongoing conflict between two otherwise "fit" parents is such a burden and a poison to the child or children involved! A plea to all parents - married or not - we have to make it our number one priority to resolve our differences amicably whenever possible.

Enrique - March 21, 2011 2:57 PM

The NH Supreme Court was patently wrong on the Constitutional issue
.
First, there was "state action", the parents were obliged to participate in the judicial process and the resulting judicial order has force of law, as it was not a non-binding "suggestion" but rather an "order" by the state. If the Court's reasoning were accurate, all judicial orders could be viewed as lacking state action. In contrast, the landmark US Supreme Court case Shelley v. Kraemer, 334 U.S. 1, 18, is authority for the premise state action is found in a judge making a judicial decision.

Second, the Court uses unconventional logic to "reason" that strict scrutiny does not apply. After conceding the US Constitution requires strict scrutiny (compelling state interest, nexus, least intrusive means) when the government interferes with parenting, the Court proceeds to create an exception to the general rule by stating that there is no authority extending this constitutional safeguard when the parties are both custodial parents. Conventional legal reasoning would require authority to create an exception to the general rule (as the Court has done here) not the reverse.

Third, the ruling of the New Hampshire Supreme Court is patently un-Constitutional. According to the Court, a family court judge may now make an "order" that interferes with a parent's right to parent his/her child (A) without being limited to a less intrusive means of achieving the same compelling state interest, and (B) without being limited to a compelling state interest (i.e., using a broad definition of "child's best interest"). Moreover, (as the Court has stated) trial courts enjoy the "widest discretion". Thus when one combines "widest discretion" with a governmental interference with the fundamental right of parenting, you arrive at the unfettered governmental discretion interfering with fundamental rights that the US Supreme Court has repeatedly found to be repugnant to the Constitution.

What the New Hampshire Supreme Court should have done was conform its affirmance (or reversal) to the Constitution. This could easily have been done by:
(1) Confirming that the well-established Constitutional safeguards are not affected by this case;
(2) Pointing out that the peaceful selection of a child's school, when disputed by two custodial parents having equal rights is a “compelling state interest”, and the judge's order reaches this objective (i.e., has “nexus”); and,
(3A -Affirmance) State as rationale there was no “less intrusive means” to make the order (i.e., one parent wanted homeschool, the other wanted public school, and there was no middle ground); or,
(3B -Reversal) Remand the case back to the trial court to find a solution that is “the least restrictive” on each parents' respective rights (this can be done by the parties or sua sponte, moreover, this is very similar to a conflict of law analysis where federal courts have to balance the competing interests of two states, for example).

This opinion is a disaster. Hopefully, one or both parties will file a motion for rehearing under Rule 22, or at least the Court will file a formal revision before publication. Otherwise, hopefully, smart members of the state bar who dare venture into district court will raise a federal Constitutional claim there, as there is no longer a state remedy. In which case, hopefully, the district court will find that there is no support for abstention doctrines and will interpret the law accurately. Ah, what a great opportunity to get into the case books!

Great job New Hampshire Supreme Court!

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