CHILD CUSTODY AND COVID - HOME SCHOOL OR PUBLIC SCHOOL

DRD v. JDD, 2021 NY Slip Op 21300 - NY: Supreme Court, Monroe 2021;

"In this matter, the Court must decide, in a contested divorce action, whether to issue a temporary order requiring the children to attend the public schools rather than be home schooled.

The father alleges that the children were enrolled in the public schools for the start of the 2021-2022 school year. The father appeared at the school on the first day and could not find his children. He was told that his wife had informed the District that neither of the children would attend school that year. As it turns out, the mother had informed the school district that she would home school the children and, thus, they did not attend school on the first day and have not since that date. Importantly, the father never agreed to have his wife home school the children and there is no evidence before this Court that the mother notified the father that she was home schooling the children this academic year or consulted with the father before implementing this choice.^[1] After the father learned of the children's absence from school, he brought an order to show cause to require the children to be enrolled immediately in the public schools. The mother filed papers in opposition.

The father has joint custodial rights in his children via a prior family court order. The father acknowledges that his older daughter struggled with remote learning in the prior year. His younger daughter has some health issues — a heart murmur and asthma — but neither ailment would preclude that younger child from attending the public schools. The mother lists no income but food stamps in her statement of net worth and there is no evidence of any employment. There is no evidence that she had a college degree or any experience as a teacher. She offered no evidence of any educational training.

The mother asserts, without any evidence, that mask wearing — required in the public schools — is unhealthy. The mother claims that mandatory vaccinations are against her religious beliefs but she offers no evidence that supports that conclusion. The mother reaches the conclusion that "home schooling offers what a public school cannot." The father opposes the home schooling, arguing that the program utilized by the mother for home schooling "provides shortcuts for parents who do not want to set up actual lesson plans for their home schooled children."

Importantly, the family court order granted the couple joint custody rights, which means that in the absence of parental agreement on home schooling, this Court must decide whether home schooling is in the children's best interests. When faced with this choice, the Court notes the court-appointed attorney for the two young children advocates returning them to the public schools. The younger daughter, in particular, wishes to return to the public schools, a position supported by the AFC. The AFC, in a written analysis forwarded to the Court and counsel, remains concerned that the children have told her that they had no written assignments, testing or required reading as part of the mother's home school requirements. In addition, there is no evidence of any oversight by the school district which approved the home schooling for these children. Given these deficiencies, the father is concerned that his children will fall behind academically.

This Court acknowledges that in the wake of the pandemic in New York, remote education through the internet was necessitated and the issue of "return to school" with attendant masking, social distancing and other requirements caused confusion and concern among parents and students. During the year when in-person public schools were unavailable, many children — and their parents — grew accustomed to learning at home, although the instruction was often broadcast by the school districts and curriculum and evaluation methods were overseen by the local districts. However, the Fall 2021 school year began in this couple's local school district with in-classroom instruction, subject to certain health-related requirements. At this stage of this proceeding, the Court must, in the context of a temporary order, determine, based on the available evidence, whether the children's best interests are served by continued home schooling — over the father's objection — or a return to the public schools — over the mother's objection.

Initially, the New York courts have made it clear that modifying a child's education plan without consultation and approval of a joint custodial parent can be a factor in changing or awarding custody. See Frawley v. Salvatore, 58 AD3d 678 (2d Dept 2009) (parent's decision to withdraw the subject children from school for home schooling as a factor in modifying custody); Matter of Michael B. v. Dolores C., 113 AD3d 517 (1st Dept 2014)(removing a child from school without consulting with the other parent violated joint custodial rights).

New York has a longstanding commitment to quality education for all students. The Education Law requires that children attend upon full-time instruction (Education Law § 3205[1][a]) at a public school or elsewhere (Education Law § 3204[2][I]) but the education must be "at least substantially equivalent to the instruction given to minors of like age and attainments at the public school of the city or district where the minor resides." The Family Court Act also requires parents to provide a child with an adequate education. Family Ct Act § 1012[f][I][A]; see Family Ct Act § 1046[b][I]. Matter of Isaac V. D. L. R. (Maria D. L. R.), 174 AD3d 622 (2d Dept 2019). While home schooling is permitted subject to approval by the local school district, the essential issue in the context of a temporary order in a divorce proceeding is whether the facts of the home schooling in this instance, overseen by this mother, are in the children's best interests. In that regard, the skills of the parent-instructor play a role. See Matter of Blerim M. v. Racquel M., 94 AD3d 562 (21st Dept 2012)(the court held that the mother's surreptitious home-schooling of the children, over the father's objections, despite being completely unqualified to do so was a factor in changing custody). As another court suggested, this Court should be especially attentive to the skills of the parent seeking to home school the children. The Appellate Division in Matter of Sloand v. Sloand, 30 AD3d 784, 786 (3d Dept 2006) noted with respect to a mother seeking to home school her children:

the mother is not able to sufficiently foster the child's intellectual development (citations omitted). Among other things, contrary to recommendations made by the child's teacher and principal, the mother intends to home school the child although she lacks teaching experience, has not had full-time employment since 1993, and has failed to respect the child's educational requirements, such as regular and punctual attendance

Id. See also Piazza v. Piazza, 2002 NY Misc. LEXIS 911 (Fam. Ct. Oswego Cty 2002)(mother seeking to home school never submitted any evidence to indicate the child's home school performance, nor did she present any home school curriculum used to instruct the child and therefore the child's best interests supported continued attendance at public schools).

The need for a competent educator to handle home schooling, even in the early grades, is well documented:

It seems almost axiomatic that — except in cases of exceptionally well-qualified parent-teachers and/or exceptionally able students — the day eventually and inevitably arrives when substantially equivalent home instruction can no longer be provided or maintained. Most parents simply cannot teach, nor can most students effectively teach themselves, advanced English or history, much less the intricacies of algebra, geometry, biology, chemistry, and physics.

In re Adam D., 132 Misc 2d 797 (Fam. Ct. Schoharie Cty 186). A further analysis of home schooling when a parent is not competent to teach is found in Matter of Bottorff v Bottorff, 2018 NY Misc. LEXIS 11094 (Fam. Ct. Oneida Cty 2018), aff'd 177 AD3d 1343 (4th Dept 2019). The Family Court there found:

. . . no proof as to the quality of the education that the mother was provid[ing]. The mother believed the children struggle with crowded spaces and in group settings, yet seemed content on not providing the children with avenues for socialization. The Court finds the earlier the children obtain sustained competent education, treatment and socialization the better; that developmental challenges, such as having difficulty in group settings, will only exasperate and become more pronounced as the children age into teenagers and beyond if not adequately addressed now. Moreover, based on the current dynamics between the parties and the children, the Court finds that allowing the mother to home school the children would excise the father from the children's education and further deteriorate the father's relationship with the children. As a result, the Court finds that it is not in the children's best interest to be home schooled.

Id at 19. The socialization benefits of public schooling have also been recognized. Matter of Wilson v Hendrickson, 88 AD3d 1092 (3d Dept 2011)(when enrolled in a pre-k school program, the child is able to make friends and interact with children her own age as factor supporting engaging in public school opportunities rather than staying at home).

In this matter, the children are young and, from one perspective, the educational requirements may be minor — simple reading, word recognition, arithmetic, phonetics, and introduction to science. But, these early instructional steps are the building blocks for advanced educational attainment and must be mastered to move into more intricate and advanced subject matter. Failure to master the building blocks may inhibit educational success at the higher levels and bred student frustration, distress and failure. Falling academically behind is a risk that children should avoid at all ages and conscientious parents, committed to their children's best interests, should not permit it to happen. In addition, the socialization benefits of public schools — interactions with friends and peers, exposure to other student from different backgrounds — are well-known. Finally, participation in school activities, sports and extracurriculars can be critically important in child development. In the papers before this Court, there is no evidence advanced by the mother that the daughters are obtaining age appropriate schooling or instruction or that the mother has the pedagogical competence to instruct the children. There is no evidence that the children have participated in school activities or extracurriculars or even been given the opportunity to do so. The mother's justifications for avoiding the public schools — that vaccinations are against her religious beliefs and "testing at school is medically inappropriate" — are offered without any evidence. The mother's claims that there are medical challenges for her daughters that might be impacted by attending the public schools lack any evidentiary support as well. Finally, as noted earlier, the father's custodial rights, established in a family court order, were violated when the mother unilaterally decided to home school the children. While she may have invited consultation about the children's schooling in a text to the father before the public schools started, she never indicated that she intended to home school the children, depriving the father of any input on that specific choice.

At this stage in this divorce action, the Court grants a temporary order requiring that the children be immediately enrolled in the appropriate public school, as participation in the public schools is, based on the evidence before this Court, in the children's best interests. The matter of best interests on a permanent basis remains to be decided after a hearing on all the issues raised in this divorce.^[2]

SUBMIT ORDER ON NOTICE NYCRR 202.48

[1] The mother, in her responding papers, offers two text messages sent to the father before school started. In one, dated August 3, 2021 (before school started), she states that there are "serious things to be discussed" regarding school for the children. There is nothing in the text that suggests the children will be home schooled. The mother also attached a series of texts which indicate she sought greater communication with the father which, she contends, never materialized. She sent a text to the father, after school started, and said that the children were being home schooled.

[2] If, at the conclusion of this proceeding, the proof establishes that home schooling would be in the best interests of these children, the Court can restore the home schooling that the mother seeks. In the meantime, the school district can evaluate the children's age and grade-appropriate educational attainment and insure that their skills match the district's and the state's requirements."