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.

New Hampshire court's decision regarding home schooling grabs national attention

A recent decision in the Laconia Family Division regarding a parent's disagreement over homeschooling their daughter has been grabbing national attention., including a headline on Fox News. Unfortunately, the news articles, bloggers, and advocates for the mother paint this as a constitutional issue, one of the state interfering with parents' constitutional right to raise their child as they see fit. However, this case is not a constitutional matter or a ruling on the merits or value of homeschooling. It is an example of what happens when two parents cannot agree on what is best for their child.

The facts of the case are as follows: Martin Kurowski and Brenda Voydatch divorced in 1999. The parties were awarded joint-decision making responsibility for their daughter, Amanda, meaning that each parent would have equal say in major life decisions such as education and medical care. Although the parents disagreed about whether Amanda should be home schooled, Amanda was home schooled by her mother. The parties continued to disagree on the issue, and because they could not agree, it went to the court. A Guardian ad Litem was appointed to investigate and make recommendations to the Court. After completing her investigation, the Guardian ad Litem recommended that Amanda's best interests were served by her attendance at public school. After a evidentiary hearing, in which both parties testified and submitted evidence, the court agreed with the Guardian ad Litem, and ordered that Amanda be enrolled in public school. The court, in the lengthy decision, states:

The Court is extremely reluctant to impose on parents a decision about a child's education, which commonly emerges after sincere and thorough discussion between parents who are both committed to the child's growth and development. In the absence of effective communication between the parents whose case reflects a history of opposing opinions on a variety of issues, the Court is guided by the premises that education is by its nature an exploration and examination of new things, and by the premise that a child requires academic, social, cultural, and physical interaction with a variety of experiences, people, concepts and surroundings in order to grow to an adult who can make intelligent decisions about how to achieve a productive and satisfying life. 

The parties do not debate the relative academic merits of home schooling and public school: it is clear that the home schooling Ms. Voydatch has provided has more than kept up with the academic requirements of the Meredith public school system. Instead, the debate centers on whether enrollment in public school will provide Amanda with an increased opportunity for group learning, group interaction, social problem solving, and exposure to a variety of points of view. Considering the testimony of both parties and the Guardian ad Litem, and by the standard of a preponderance of the evidence, the Court concludes that it would be in Amanda's best interests to attend public school.

"Parents have the fundamental rights to raise their children to the dictates of their conscience," stated the mother's attorney, John Simmons. And this is true, to a certain extent. As recently discussed on this blog, the United States Supreme Court has ruled that parents have a constitutional right to rear their children as they see fit. The court also affirmed that there is “a presumption that fit parents act in the best interests of their children.” The key word here is parents. The state may not intrude on two fit parents who jointly decide what is best for their child. That is not the case here.

Here, two fit parents did not agree on what was best for their child. Attorney Simmons argues that the court has taken away Voydatch's right, as the girl's primary-custody parent, to make decisions regarding her future. Attorney Simmons argument falls short however, as being the parent assigned primary residential responsibility has no bearing on whether that parent has the right to make unilateral decisions about the child. New Hampshire, as with most states, breaks "custody' into two categories: 1) residential and 2) decision-making. A parent could have the majority of the parenting time, called residential responsibility, but still be required to share decision-making responsibility. In this case,  Martin Kurowski and Brenda Voydatch had joint-decision making responsibility. They could not agree on whether Amanda should be home schooled, and in the absence of agreement, the court decided the issue. The father's attorney, Elizabeth Donovan, has it right when she explains: "When two parents with joint decision-making responsibility disagree and they cannot come to any common ground, we submit it to the court. The court takes all the testimony and the court renders a decision. Mrs. Voydatch didn't like the decision."

Parents should keep cases like this in mind when they are litigating issues regarding their children. Parents have two choices. Either the parents decide what is best for their children together as a family, or a judge, who the parents will meet just a few times in their life, will make the decisions for the parents and their children.

Parenting rights and responsibilities

New Hampshire law categorizes parenting rights and responsibilities into two groups: decision making responsibility and residential responsibility. These are the new terms for what used to be called "legal custody" and "physical custody," and have been called such since October 1, 2005 when the new statue went into effect.

Decision making is defined as the "responsibility to make decisions for the child." Basically, they are the major decisions about how the child will be brought up. The decisions include the choices a parent makes about a child's education, medical care, religion. Parents may be awarded joint decision making responsibility, so that the parents should agree on the care and upbringing of their child. Alternatively, one parent may be awarded sole decision making responsibility.

Residential responsibility means "a parent's responsibility to provide a home for the child." The parenting schedule will determine what type of responsibility each parent has, whether sole, primary or shared responsibility. The day to day decision making, including the ability to make emergency medical care decisions, rest with the parent the child is with at that time.