IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE
June 29, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
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.
OPINION
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.
1
Home 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.
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.
2
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 protection against 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
3
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
4
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
5
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.
6
_______________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Herschel P. Franks, Judge
_______________________________
Charles D. Susano, Jr., Judge
7