SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2362-19T2

D.C.,

1

Plaintiff-Appellant,

v.

V.C., 

Defendant-Respondent.

________________________

Submitted January 19, 2020 – Decided

Before Judges Sabatino and DeAlmeida.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Cumberland County, 

Docket No. FM-06-0479-15.

Paul H. Scull, Jr., attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

1 We use initials and pseudonyms to protect the welfare of the parties' minor 

children. R. 1:38-3(d). 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

January 27, 2021
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In this unopposed appeal, D.C., the father of the parties' two minor 

children C.C. and D.C.,

2

seeks relief from the Family Part's January 3, 2020 

order denying relief with respect to the children's alleged educational neglect. 

Specifically, the father urges that remedial action is warranted to address the 

apparent failure of the children's mother, V.B. (formerly known as V.C.) to 

provide adequate instruction to the children through home schooling. 

For the reasons that follow, we vacate several portions of the January 3, 

2020 order, remanding this case for additional evaluations and a plenary hearing,

yielding a more informed basis for the trial court to reconsider measures that 

may be warranted to assure the children's educational best interests.

The parties are the parents of Claudia, who was born in September 2010, 

and her younger brother Derek, who was born in September 2012. The parties 

divorced in June 2017, entering into a Marital Settlement Agreement ("MSA") 

with the mutual assistance of counsel. Under the terms of the MSA, the parties 

agreed to share joint legal and physical custody of both children. The parties 

designated the mother the parent of primary residence and the father the parent 

of alternate residence. 

2 Because the father and the son share the same initials "D.C.," we hereafter 

refer to the former as "the father" and the latter by the pseudonym "Derek." We 

shall refer to the daughter, C.C., by the pseudonym "Claudia."
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In her role as primary custodian, the mother decided, against the father's 

wishes, to provide both children with home schooling rather than enroll them in 

the public-school system. She noted in her motion certification that the father 

himself was home schooled as a child. 

As time passed, the father became increasingly concerned about the 

effectiveness of the children's home schooling. On the other hand, the mother 

has insisted she has adequately met the children's educational needs. According 

to the mother, the father has unjustifiably complained about the quality of her 

home schooling simply to harass her.3

In April 2019, a pediatrician with the CARES Institute performed an 

examination of Claudia at the behest of the Division. The pediatrician, who is 

an associate professor of pediatrics, authored a sixteen-page report covering a 

range of concerns, including educational needs. At the time of the CARES 

report, Claudia was eight years old and would have been in the third grade.

The CARES report identified numerous concerns about deficiencies in 

Claudia's home schooling. Among other things, the expert noted that Claudia 

3 The record shows the parties have had numerous disputes concerning the 

welfare of the children, some of which have prompted the involvement of the 

Division of Child Protection and Permanency ("the Division"). We do not 

address those issues here except for the contentions of educational neglect.
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was "unable to read even a very basic book" and "could not read a full sentence." 

The expert further noted that Claudia was "unable to complete very simple 

mathematics problems such as addition and early multiplication." The expert 

opined that these shortcomings were "very concerning for educational neglect." 

More specifically, the expert recommended that Claudia and her brother be 

"enrolled in school," and that Claudia receive "a formal evaluation of her 

cognitive abilities and her academic achievement to ascertain whether or not she 

is getting appropriate education."

Following the CARES report, the father moved in the Family Part for, 

among other things, an order directing the children to be evaluated by a child 

psychologist and to be tested by the public school. The mother, through counsel, 

opposed the motion, and cross-moved herself for various items.

After considering the parties' submissions, the trial court issued a lengthy 

order on September 9, 2019 which addressed a variety of issues, including the 

children's schooling. Within that order, the trial court stated it "finds that there 

is significant circumstantial evidence from the NJ CARES [I]nstitute that causes 

the Court concern and that warrants further investigation [so as] to err to the 

side of protecting the children." Although the court declined at that point to 

make any finding the children had been abused or neglected, the court did order 
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the parties to "execute the necessary authorizations and documentation to have 

the minor children evaluated educationally by the [local public-school district] 

as soon as possible."

In addition, the court's September 9, 2019 order granted, with certain 

modifications, the father's request that the children be evaluated by a child 

psychologist, as had been recommended by the CARES expert. Toward that 

end, the court instructed each party to propose the names of three acceptable 

psychologists who could undertake the evaluation. The father's counsel 

submitted three names and the mother's counsel submitted two.

As directed, the local elementary school performed an educational 

screening of both children in mid-September 2019, utilizing various assessment 

tests in reading and math. The screening revealed that each child was 

significantly behind his or her peers, as much as up to two grade levels. The 

screening results were presented to the trial court, and both parents supplied 

additional submissions. The father advocated that the children be immediately 

enrolled in the public school. The mother opposed such action, contending that 

the screeners unfairly used milestones for the end of the academic year to 

evaluate the progress of the children who had not yet completed the year.
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The case returned to court in December 2019. After hearing oral argument 

but no testimony, the court altered course and determined that no further steps 

were warranted to address the children's educational concerns. The court found 

it significant that the mother, as the parent of primary residence, had the 

prerogative under N.J.S.A. 18A:38-25 to choose home schooling for the children 

in lieu of traditional public education. The court further recognized that neither 

the Division nor the school district had seen fit to initiate any steps to require 

the children to attend the elementary school. In addition, the court expressed 

concerns that the children might react adversely to being made subject to further 

testing and evaluations while their parents fought and litigated over their 

schooling. 

Having reflected on the situation in this manner, the trial court issued an 

order on January 3, 2020, denying the father's motion in nearly all respects. 

Among other things, the order declared the court "will not interfere with [the 

mother's] home schooling of the minor children," and denied the father's request 

to have them enrolled in the public school. The order further denied the father's 

request for the children to undertake comprehensive psychological evaluations, 

and likewise denied his requests for risk assessments. Further, the court denied 

the father's request for the children to switch to a counselor approved by the 
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Division's case worker, although the court did order both parties "to follow any 

recommendations of the [Division]." The court did keep intact a provision 

within its September 2019 order requiring the mother to consult and confer with 

the father concerning "all major non-emergent medical, educational, and issues 

pertaining to religion." Although not embodied in the order, the court orally 

urged the mother at the motion hearing to be more attentive to the children's 

educational needs.

In his appeal of the court's January 3, 2020 order, the father argues the 

trial court gave too much deference to the mother as the primary custodial 

parent, and failed to take sufficiently into account the children's best interests. 

The father requests that the matter be remanded for a plenary hearing and the 

completion of psychological evaluations and academic testing of both children. 

The mother has not filed a brief in opposition to the appeal.

The polestar of our state's laws involving custody and other post-divorce 

matters affecting minor children is the best interests of the child. See, e.g., 

N.J.S.A. 9:2-4(a) to (c); Pascale v. Pascale, 140 N.J. 583, 588 (1995). Where, 

as here, divorced parents share joint physical and legal custody of their children, 

the parent of primary residence has some presumptive latitude over the 

children's day-to-day affairs. Pascale, 140 N.J. at 599-600. Nonetheless, that 
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primary caretaker is not permitted to take unilateral actions that are 

demonstrably harmful to the children's best interests. Id. at 596.

Here, there are substantial indicia in the record from neutral sources such 

as the CARE pediatrician and the school testing professionals that both Claudia 

and Derek are seriously behind in their educational progress. Although we 

appreciate the trial court's understandable concern about the children being 

subjected to excessive testing or evaluations, the record we have been provided 

raises considerable issues of educational deficiencies that must be more deeply 

explored. 

The right of a parent to elect home schooling under N.J.S.A. 18A:38-25 

is not unlimited. The children must receive "academic equivalence." N.J.S.A. 

18A:38-25; see also State v. Massa, 95 N.J. Super. 382, 390 (Law Div. 1967). 

The trial court misapplied its discretion in declining to have these educational 

issues investigated and addressed more thoroughly.

We accordingly vacate paragraphs 1 through 4 of the January 3, 2020 

order, and remand for further proceedings, which shall include evaluations by a 

court-appointed child psychologist and updated academic testing. Following 

such reports, the court shall conduct an evidentiary hearing to resolve any 

disputed questions of fact. To plan these remand activities, the court is 
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instructed to conduct a case management conference within twenty days.4 We 

make no determination as to whether or not the children shall be enrolled in the 

public school, as that ultimate decision will rest with the Family Part after the 

current evidence concerning the children's status and best interests is more fully 

developed.

Vacated in part and remanded. We do not retain jurisdiction.

4 The court is free to include in the remand proceedings any other issues relating 

to the children's welfare beyond the educational matters that are the subject of 

this appeal.