Supreme Court, Monroe County, November 2, 2021

Aaron M. Gavenda, Rochester, for plaintiff.

John D. Wieser, Rochester, for defendant.

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 homeschooled.

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 homeschool 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 homeschool the children and there is no evidence before this court that the mother notified the father that she was homeschooling the children this academic year or consulted with the father before implementing this choice.^[FN1] 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 [*2]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{**73 Misc 3d at 815} 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 homeschooling, arguing that the program utilized by the mother for homeschooling "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 homeschooling, this court must decide whether homeschooling 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 Attorney for the Children (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 homeschool requirements. In addition, there is no evidence of any oversight by the school district which approved the homeschooling 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{**73 Misc 3d at 816} 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 homeschooling—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 homeschooling 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 long-standing 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 schools 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 § 1046 [b] [i]; Matter of Isaac V.D.L.R. [Maria D.L.R.], 174 AD3d 622 [2d Dept 2019].) While homeschooling 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 homeschooling 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 [1st Dept 2012] [the Court held that the mother's surreptitious homeschooling 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 homeschool 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 homeschool her children:{**73 Misc 3d at 817}

"the mother is not able to sufficiently foster the child's intellectual development. 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. [citations omitted]; see also Matter of Piazza v Piazza, 2002 NY Slip Op 50277[U] [Fam Ct, Oswego County 2002] [mother seeking to homeschool never submitted any evidence to indicate the child's homeschool performance, nor did she present any homeschool 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 homeschooling, 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." (Matter of Adam D., 132 Misc 2d 797 [Fam Ct, Schoharie County 1986].)

A further analysis of homeschooling when a parent is not competent to teach is found in Matter of Bottorff v Bottorff (2018 NY Slip Op 33646[U] [Fam Ct, Oneida County 2018], affd 177 AD3d 1343 [4th Dept 2019]). The Family Court there found:

"no proof as to the quality of the education that the mother was providing. The [*4]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{**73 Misc 3d at 818} 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." (2018 NY Slip Op 33646[U], *7.)

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's ability 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 breed 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 students 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{**73 Misc 3d at 819} family court order, were violated when the mother unilaterally decided to homeschool 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 homeschool 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 [*5]in this divorce.^[FN2]