Appeal in the New Hampshire homeschooling case: Kurowski & Voydatch

Back in September 2009, the so-called New Hampshire homeschooling case (In the Matter of Martin Kurowski and Brenda Voydatch) grabbed national headlines when the court ordered the parties’ child to attend public school instead of continuing with home schooling. Home school supporters decried the decision, arguing that the order trampled the mother’s constitutional rights to raise and educate her child as she saw fit. The problem with that line of thinking is that it fails to acknowledge that the child has two parents, not one. As an equal decision maker, the father has rights too. When the parents could not agree on matters of education and religion, the family court decided.

The case is currently on appeal at the New Hampshire Supreme Court, and headed to oral arguments on January 6, 2011 at 9:00 am. The parties have submitted their briefs, including an Amicus Curiae brief from the Home School Legal Defense Association (HSLDA).  

The mother, through her attorney John Simmons, filed an appeal and brief with the New Hampshire Supreme Court, asking the court to consider the following questions:

 

  • Whether the trial court erred in modifying a parenting plan, to order a home schooled child to attend public school, by considering the “best interests of the child”, where none of the statutory circumstances permitting modification, as set forth in RSA 461-A:11, were present, and the court made such finding.
  •  Whether the trial court erroneously concluded that it was in the best interests of a home-schooled child to be sent to public school where the court’s decision was based on its own definition of the purpose of education that was unsupported by RSA 461-A:6,I or by any other law.
  •  Whether the trial court’s decision should be reversed because it committed plain error in relying on the opinion testimony of a guardian ad litem who was not qualified as an expert and who’s opinion was not based on a rational perception within the meaning of Rule 701 of the New Hampshire Rules of Evidence.
  • Whether the trial court’s order that a home schooled child attend public school to expose her to diverse points of view was erroneous because it violated the fundamental parental right to control a child’s education guaranteed by the United States Constitution, where the evidence showed that the child was already getting a superior education and the State’s purported goal could be achieved by a less restrictive means.
  •  Whether the trial court’s order that a home schooled child attend public school because she was too rigid in her religious beliefs was erroneous because it interfered with the child’s right to the free exercise of religion guaranteed by the First Amendment to the United States Constitution.
  • Whether the trial court’s order that a home schooled child attend public school should be reversed because it relief on the testimony of a guardian ad litem who was biased against the religion practiced by the child and her mother.

The father, through his attorney Joshua Gordon, submitted a reply brief. HSLDA submitted an amicus curiae brief. Stay tuned for a blog post reviewing the arguments and briefs.

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.