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.

  • Mother does not always know best. You are right; we’re going to stay tuned on this one.

  • Thanks for the comment Timothy. I agree that an intereting issue in this case is the custodial parent’s claim that she has some sort of superior right to make a decision by virtue of physical possession, even when the parents have joint-decision making and the other does not agree.

  • Enrique Monteagudo

    I don’t think the mother is arguing that she has a “superior” right, but rather, before state action may interfere with either parent’s fundamental rights it must pass strict scrutiny (i.e., Compelling State Interest, Nexus, and No Less Intrusive Means). Three things really bother me about this case.

    First, neither party briefed state action that well, which is required for strict scrutiny. In particular, neither party cited Shelley v. Kraemer, 334 U.S. 1, 18, which states that state action is found in a judge making a judicial decision. This is very different than the Respondent’s argument that there is no state action and that the action is between the parties. I really hope the Supreme Court doesn’t miss this one…

    Second, neither party discussed the techniques used in determining choice of law, which are analogous to, or at least helpful in understanding a Least Intrusive Means test. It seems that Appellant is arguing that the court was required to balance the competing policies in her favor, and the Respondent is arguing a sort of “penalties decline” point where all the Substantive Due Process protections dispensed with, since both parties share equal rights. Neither is correct. As parents are similar to equal sovereigns, it would be instructive for the Supreme Court to look at the well developed “choice of law” cases, where we have two (or more) states having equal rights and intrests in a matter. Those cases are conceptually like “least intrusive means” cases, where the decisionmaker with look at competing requests in light of which state policies will be vindicated. Here, the court might have looked at which concerns each parent had (e.g., religion, socializing, education, etc.) and determine which outcome would vindicate the all or the majority of the both parents’ concerns. Regardless of the outcome (i.e., home school or gov’t school), this would be far more appropriate and coherent than creating a Substantive Due Process “carve out” based on the parties being parents of the same child. This is just lazy thinking that shouldn’t pass muster.

    Third, there is entirely too much credit given to the overused talismanic phrase “child’s best interest”, and neither party sought to challenge it’s breadth or application. To illustrate it’s breadth, it is in a child’s best interest to have clean clother, and it is in a child’s best interest to not be molested or abused. Although “best interest” is broad and vague enough to encompass both, no reasonable jurist could justify interfereing with either parent’s right to parent based on the first illustration. If “best interest” is to be used as a bright line rule that carries the weight of “compelling state interest”, it should be narrowed to mean “to do otherwise would be detrimental to the child”. Otherwise, such a wide interpretation would necessarily open the door and authorize unfettered discretion in interfering with fundamental rights. Hopefully, the Supreme Court will address this as well.