1Home schooling is a permissible educational alternative in Tennessee. T.C.A. § 49-6-

3050(a)(1) (1990) permits parents to educate their children at home and provides that home

schooling is an exception to the mandatory school attendance laws as long as the educational

program meets the requirements of state law. 

FILED

June 29, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

VICKIE SUE ANDERSON, ) McMINN CIRCUIT

) (No. 19,687)

Plaintiff/Appellant )

) NO. 03A01-9810-CV-00366

v. )

) HON. JOHN B. HAGLER

RONNY LEE ANDERSON, ) JUDGE

)

Defendant/Appellee ) AFFIRMED

John W. Cleveland, Sweetwater, for Appellant.

H. Chris Trew, Athens, for Appellee.

O P I N I O N

INMAN, Senior Judge

These parties were divorced in 1995. They were awarded joint custody of

two children, with ‘primary physical custody’ awarded to Mother, who, in 1998,

advised Father of her intent to home school their youngest daughter, Delilah.

Father thereupon petitioned the Court for an order requiring Mother to continue

Delilah’s public schooling. The trial judge found (1) that Mother had not properly

supervised the educational needs of Delilah, (2) “that she has too many irons in the

fire,” (3) that she has neither the time nor the detachment nor the ability to by

herself manage the educational needs of this child.

Mother appeals, insisting that as the primary residential custodial parent it

is her prerogative to home school her child,1 and that no evidence was presented

that home schooling posed a threat of harm to the child or an increased burden on

the Father.
2

Our review of the findings of fact made by the trial Court is de novo upon

the record of the trial Court, accompanied by a presumption of the correctness of

the finding, unless the preponderance of the evidence is otherwise. TENN. R. APP.

P., RULE 13(d); Campbell v. Florida Steel Corp., 919 S.W.2d 26 (Tenn. 1996).

At the outset, we are constrained to comment on the literary nature of the

briefs and the professionalism each represents. Each party recognizes the obstacle

posed by the original award of joint custody, a doctrine placative in its

pronouncement but often productive of accelerated familial discord and litigation

which frequently results in lasting harm to the children whose best interests are

thereby relegated to parental whim.

The appellant Mother argues that the Constitution of Tennessee protects her

sole prerogative to make significant decisions about Delilah’s education as long

as she remains fit to have custody, citing Rust v. Rust, 864 S.W.2d 52 (Tenn. App.

1993), because our society has long recognized as one of its most basic tenets that

the responsibility for raising children rests first with their parents. Hawk v. Hawk,

855 S.W.2d 573, 577-78 (Tenn. 1993). The concept of custody is inextricably

linked with parents’ right to be free from unwarranted outside interference with

their child rearing decisions. Raising children is beyond the competence of

impersonal political institutions. Bellotti v. Baird, 443 U.S. 622, 638, 99 S.Ct.

3035, 61 L.Ed. 797 (1979). As held in Rust, supra, the concept of “custody”

connotes a complex bundle of rights and obligations arising from the parent-child

relationship. Parents share these custodial rights and obligations in the context of

an ongoing marriage. These rights and obligations are extensive and operate

against the state and third persons. They include the obligation to raise and

support the child and the right to make fundamental decisions about the child’s

education.
3

A divorce causes a breach in the traditionally private realm of family life.

It requires the courts to intervene into the family relationship because only the

courts may dissolve the legal bonds of marriage and sort out and reorder the

parties’ rights and obligations. 

Parents who have been awarded sole legal custody have the right to make

the decisions concerning their child’s education, including the choice of schools,

unless the custody order contains a contrary provision. Appellant argues that the

courts should not second guess these decisions when they are consistent with state

law, and a noncustodial parent should only have a voice in these decisions when

they impose an increased or new burden on the noncustodial parent, citing Lewis

v. Lewis, 741 S.W.2d 900, 902 (Tenn. App. 1987). An initial custody decision,

once final, creates new legal relationships between the parents themselves and

between each parent and the child. It also creates a new family unit now

commonly referred to as a “single parent family.” This new family unit is entitled

to a similar measure of constitutional protectionagainst unwarranted governmental

intrusion as is accorded to an intact, two parent family. A divorce does not

significantly lessen a custodial parent’s child rearing autonomy, and the courts

cannot intrude into the educational decisions made by custodial parent unless these

private decisions were illegal or were affirmatively harming the child. Rust at 56.

In terms of the parents’ relationships with Delilah, the allocation of rights and

obligations of Mr. and Mrs. Anderson and Mrs. Anderson’s child-rearing

autonomy, the substance of the new “single parent family” unit created in this case

by the Andersons’ divorce is no different from the “single parent family” in Rust.

In Rust, supra, the trial court “determined that a custodial parent could not

home school a child over the objection of the noncustodial parent and that the
4

courts should decide which educational opportunity was in the child’s best

interests when a noncustodial parent objects to home schooling. Because the trial

court believed that home schooling “deviates substantially from the norm,” the trial

court decided that enrolling the Rusts’ son in public school was in his best interest

and directed Mrs. Rust to enroll her son in public school. We reversed the trial

court’s decision that it could countermand the decision of a custodial parent, who

is otherwise a fit custodial parent, concerning her child’s education if the

noncustodial parent objected and if the court determined that the decision was not

in the child’s best interest.

But the case at Bar must be distinguished from Rust, because of the award

of joint custody. Appellant, in effect, argues that this is of no consequence because

she is the primary residential parent and is thus entitled to make the decision to

home school their child without governmental interference. The appellee rejoins

that joint custody affords to both parties the shared parental responsibility for and

right to make decisions regarding a child’s education, religion, residence,

discipline and medical care, citing Shepherd v. Metcalf, 794 S.W.2d 348 (Tenn.

1990). He argues that since the parties have joint legal custody, Mother did not

have the unilateral right to remove the minor child from the public school system,

because he has a concomitant right to participate in decisions regarding his child’s

education, and it is appropriate to ask the divorce court to intercede in situations

such as present in this case where the parents in a joint custody arrangement cannot

agree upon a decision concerning education.

We agree that given the joint custody posture, it was appropriate to ask the

divorce court to intercede and, in effect, to “break the tie.” If Mother has the

unilateral right, as she claims, to make the decision of home schooling vis-a-vis
5

public schooling, Father is thereby relegated to a powerless position and joint

custody is rendered meaningless.

Against the background of these comments, we turn now to the evidence

presented which impelled the experienced trial judge to intercede.

The evidence revealed that Mother completed two years of high school only,

but did receive her G.E.D. in 1978. In addition to an active schedule away from

work, she has full-time employment. She is the general agent of record for

McMinn County Farmers Mutual Fire Insurance Company, Inc., and serves as the

Managing General Agent, Office Manager and Bookkeeper.

In choosing a curriculum for the home schooling, she did not consult with

an expert in school curricula. She located a “used book vendor” in Crossville,

Tennessee and “hand-picked the curriculum” herself taking suggestions from the

book vendor.

Barbara Woody, a teacher at Niota Elementary School, was Delilah’s second

grade teacher. She has 26 years’ teaching experience and a Master’s Degree, plus

30 hours in elementary education. She taught Delilah during the school year 1997-

1998. She testified that Delilah was below average when she began the second

grade, was immature and had a short attention span. School work was difficult for

her because she was easily distracted and in general was unable to complete

assignments. She exhibited many traits common to children with Attention Deficit

Disorder.

Delilah’s grades in the second grade were: Reading - C-; Spelling - B;

English - C; and Math - D.

A Teacher Rating Scale completed by Ms. Woody indicated a number of

common problems that children have in school. Delilah was found to have the
6

common problems of restlessness, difficulties engaging in tasks that require

sustained mental effort, failure to finish work, inattentiveness, difficulty in

organizing tasks for activities, fidgeting and short attention span.

Ms. Woody testified that Delilah would only complete about one-half of her

homework assignments, even though she discussed this problem with her Mother.

Significantly, Ms. Woody testified that the Father had Delilah a few days each

month during the school week and, on these occasions, she had no problems with

Delilah completing her homework.

The attendance records revealed that Delilah was late for school on 17

occasions while in the second grade. Ms. Woody testified that she discussed with

Mother the problems of tardiness, one of which was the difficulty to persuade

Delilah to attend to her tasks when she came in late. As expressed by Ms. Woody:

“It really upset Delilah in the mornings when she came in, because

she was real slow about getting started, and when she came in the

other children were working, it kind of upset her and it really kind of

just blew her morning for her. It was really hard for me to get her on

task once she came in late.”

Ms. Woody testified that Delilah made a great deal of progress during the

school year, at the end of which she was reading on a second grade level. She

followed the curriculum she had obtained for Delilah, who is now making A’s and

A+’s, rather than the C’s and a D the prior year.

The finding of the trial judge “that Mother has neither the time, nor the

detachment, nor the ability to, by herself, manage the educational needs of this

child” is a heady one, since it focuses on the best interests of Delilah. In light of

our conclusion that the court had the right, and the duty, to intercede in the issue,

we cannot find that the evidence preponderates against the judgment, which is

affirmed at the costs of the appellant.
7

_______________________________

William H. Inman, Senior Judge

CONCUR:

_______________________________

Herschel P. Franks, Judge

_______________________________

Charles D. Susano, Jr., Judge