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

3050(a)(1) (19

90) permits pare

nts to educate the

ir children at home

and provides that h

ome 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/Appell

ant )

) NO. 03A01-9810-C V-00366 v. ) ) HON. JOHN B. HAGLER RONNY LEE ANDERSON, ) JUDGE ) Defendant/Appellee ) AFFIRMED

John W. Clevelan

d, Sweetwater

, for Appellant. H. Chris Trew, Athens, for Appellee.


### O P I N IO N

INMAN, Senio

r Judge These parties we

re divorced in 1995. They were a warded joint cust

ody of two children, with ‘primary physica l custo dy’ awarded to Mother , who, in 1998, advi sed Father of her inte nt to home school th

eir youngest daugh

ter, Delilah. Father thereupon petitioned t

he Court for an orde

r requir i ng Mother to continue Delilah’s public schooling. The trial judge found (1) tha t Mother had not proper

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

irons in the fire,” (3) that she has neither the t ime nor the deta

chment nor the a

bility to by herself mana

ge the educational ne

eds of this child. Mother appeals, insisting that as the primary residential custodial parent it is her prerogative to home school her c hild, 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 ma

de by the trial Court

is de novo upon the record of the trial Court, accompani ed by a presumption

of the correctnes s of the finding, unless the pr

eponderance of the

evidence is otherwise. T ENN . R. A PP . P., R ULE 13(d); Campbell v. Florida S teel Corp., 919 S.W.2d 26 (Tenn. 1996). Atthe outset, we are cons trained to comm ent on the literary

nature of the briefs and the professionalism each represents. Each party recogniz

es the obstacle posed by the origi nal award of joi nt custody, a doc

trine placative in i

ts pronouncement

but often productive of acce lerated fami

lial discord and

litigation which frequently re sults in lasting harm to the chi l dren whose best interests are there by rele gated to par ental whim. The appellant Mother ar

gues that the

Constitution of

Tennessee protects her sole prerogative to m

ake significant de

cisio ns about Delilah’ s education as long

as she remains fi

t to have custody,

citing Rust v. Rust, 864 S.W.2d 52 (T enn. App. 1993), because our society has long recognized a

s one of its most basic

tenets that the responsibility for raising children rests first with thei r parents. Hawk v. Hawk, 8 55 S.W.2d 573, 577-78 (Tenn. 1993). The concept of custody is inextri cabl y linked with parents’ right to be free from unwarr ant ed outside interfer

ence with their child reari ng decisions. Raisin g children is beyo

nd the competenc

e of impersonal political instit utions. Bellotti v. Baird, 443 U.S. 622, 638, 99 S.Ct. 3035, 61 L.Ed. 797 (1979). As held in Rust, supra, the con cept of “custod y” connotes a complex bundle of rights and obligations a

rising from the

parent-child relationship. Parents share the se custodial rights an d obligations in the context of

an ongo ing ma rriage . These rights and obligations are exte

nsive and operate against the state and third pe

rsons. They in

clude the obligation to raise and support the child and th

e righ t to make fund amental deci sions abo ut the chi ld’s education.3 A divorce cau ses a bre ach in the traditionally private realm of family life. Itrequires the cour

ts to inter vene into the fam ily relationship because only the courts may dissolve the legal bo nds of marriag

e and sort out and reor

der the parties’ rights and o bligations. Parents w ho have been award ed sole legal custody

have the right to m

ake 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 dec

isions when they a

re consistent with

state law, and a noncusto

dial parent should

only have a voice

in these decisions

when they impose an incre

ased or new burden o

n the noncustodial parent, citing Lewis v. Lewis, 741 S.W.2d 900, 902 (Tenn. App. 1987). An initia l cust ody decision , once final, creates n ew l egal relationships be tween the parents themselves and betwee n 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 m

easure of constitut

ional protection a gainst unwarranted governmental intrusion as is accor

d ed to an intact, tw

o parent famil

y. A divorce does not significantly

lessen a custodial pa

rent’s child rea

ring autonomy , and the courts cannot intrude into the educational decisions made by custodial parent unless these private decisions were illegal or were affirmatively harming t he child. Rust at 56. In terms of

t he parents’ rel

ationships with Deli

lah, the allocation

of rights and obligations of Mr. and Mrs. A nderson and Mrs. A

nderson’s child-r

earing autono my, the substance of the new “single parent family” u nit created in this case by the Andersons’ divorc e is no different

from the “ single parent fam ily” in Rust. In Rust, supra, the trial court “d etermined tha

t a custodial parent cou

ld not home s chool a child over the objection of the nonc

ustodial parent and tha

t th e4

courts should decide which e ducational opportunity

was in the child’s best interests when a noncustodial pa rent objects to hom

e schooling. Becau se the trial courtbelieved that hom

e schooling “devi

ates substantiall

y from the norm,” the trial courtdecided that enrolli

ng the Rusts’ son in pub

lic school was in his best inter

est and directed Mrs. Ru st to enroll her son in public school. We reversed the trial court’s decision that it

could countermand the decision of a custodial parent, w

ho is otherwise a fit c

ustodial parent, co

ncerning her child’ s education if the noncustodial parent objected a nd if the court determined that the decision was not in the child’s best i

nterest. 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 be cause she is the primary

residential parent and i s thus entitled to m ake the decision to home school their child without governmental interference. The appellee rej oins that joint custody af

fords to both parties the shar ed parental respons

ibility for and right to make decisio

ns regarding a child’ s e d ucation, religion, residence, discipline and medical ca

re, citin g Shepherd v. Metcalf, 794 S.W.2d 348 (T enn. 1990). He a rgues that since the parties have joint legal custody, Mother did no t have the unilateral right to r emove the

minor c hild from th e pub lic sc hool syste m, because he has a concomita

nt right to participa

te in decisionsregarding his child ’s education, and it is

appropriate to ask t

he divorce court to in

tercede in situations such as present in this

case where the parent

s in a joint custody

arrangement

cannot agree upon a decisio

n concerning educati

on. We agree that given the

joint custody

posture, it was appropriate to ask t he divorce court to intercede and, in effect,

to “break t

he t ie.” If Mother ha

s the unil ateral right, as she claim s, to make the d

ecision of home schooling vis-a-vis5

public schooling, Father i s t here by relegated to a powerless position

and joint custody is render

ed meaningless. Against the backgr

ound of th ese comments, we turn now to the evidence presented which impelled the experienced trial judge to intercede. The evidence revealed that Mothe r completed tw

o years of high sc

hool only, but did receive her

G.E .D. in 1978. In a

ddition to an active sc

hedule away f

rom work, she has full-tim

e empl oym ent. She is the gene ral agent of recor

d for McMinn County Farmers Mutual Fire Insu rance Company, Inc., and serves as the Managing General Agent, Office Manager and Bookkeeper. In choosing a curric

ulum for the hom

e schooling, she did not consult with

an e xpert in sch ool curricula. She located a “used book vendor” in Crossville, Tennessee and “hand-picke d the curriculum

” herself taking sugg

estions from the book vendor. Barbara Woody, a tea

cher at Niota El

ementary School, was Del

i lah’s second grade teacher. She ha

s 26 years’ te

aching experience and a Master’s D egree, plus 30 hours in elementary education. She taught Delilah during the school year

1997- 1998. She testified that Delilah was below average when she beg an the sec ond grade, was imma

ture and had a short a

ttention span. School work was di fficult for her because she was easi ly distracted and in gen eral was unable to

complete assignments. She exhibited m any traits com

mon to children with At

tention Deficit Disorder. Delilah’s gra des in the second grade were: Reading - C-; Spelling - B; English - C; and Math - D. A Tea c her Rating Scale c ompleted by Ms. Woody indi cated a number

of

common problems that c

hildren have in school.

Delila h was f ound to have the6

common proble ms of restlessness, difficulties engaging in tasks that require sustained mental effort, failure to fini sh work, inattentiv eness, diffi culty in organizing tasks for

activities, fidge

ting and short attentio

n span. Ms. Woody testifi

ed that Delilah wo

uld only compl

ete about one-half

of her homework

assignments, eventhough she discussed this problem with her Mother. Signif icantl y, Ms. W oody testified that the Father had Delilah a few days each month during the school wee

k and, on these occa

sions, she had no proble

ms with Delilah compl

eting her homew

ork. The attendance recor

ds revealed that D

elilah was late f

or school on 17 occasions while in the second g rade. Ms. Woody testifi ed that she discussed w

ith Motherthe problems of

tardiness, one of w

hich was the diffic

ulty to persuade Delilah to attend toher tasks when she came in late. As expressed by Ms. Woody: “It really up set De lilah in the morn ings when she cam

e in, because she was real slow about gett ing started, and wh

en she came in t

he otherchildren were working, it kind of up set her and it real ly kind of just blew her morning for her. It wasreally hard f or me to get her

on task once she came in late.” Ms. Woody testifi

ed that Delilah mad e a great deal of p rogress during the sch ool year, at the end of which she was reading on a second grade level. Sh e followed the curriculum she had obtained for De

lilah, who is now m

aking A’s and A+’s, rather than the C’s and a D the prior year. The finding of the trial j udge “ that Mother has neith er 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 D

elilah. In light of

our conclusion that the court had the rig ht, and the duty,

to intercede in the

issue,

we cannot find that the e vidence prepondera

tes against the judg me nt, which is affirmed at

the costs of the appe

llant.7 _______________________________ William H.

Inman, Senio

r Judge

CONCUR:

_______________________________ Herschel P. Fr

anks, Judge

_______________________________ Charles D. Susano, Jr., Judge