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March-April 2011 Selected Content

Homeschooling and Divorce - Jennifer L.W. Fink


"I've been thinking about leaving you..."

With those words, my husband shattered my life. And while we both believed, at the beginning, that we could work together to provide a sense of stability and continuity for our four children, soon everything - including homeschooling - was called into question.

Homeschoolers have not traditionally fared well in divorces. In 2009 alone, a New Hampshire court ordered a 10-year-old homeschooled girl to public school after her father decided homeschooling deprived the girl socially, despite the fact that the girl was doing well in homeschool. A North Carolina judge also ordered the children of Thomas and Venessa Mills to school in the wake of their divorce. The rulings are enough to strike fear into the heart of any homeschooling parent. While my marriage had floundered for years, I'd stuck it out, partly because I loved my husband and felt a deep sense of commitment to him, but also because I feared that a divorce or separation could threaten home education.

In Case of Divorce...

• Jot down any previous educational agreements. If your spouse is disputing your right to homeschool, it will be essential to show that he or she was on board at one point in time. Do you have any papers, documents or notes that indicate his or her previous agreement or involvement in homeschooling?

• Keep records. Your state might not require detailed educational records, but anything you can muster to prove your child's learning - worksheets, projects, awards, souvenirs from field trips, etc. - will be helpful.

• Do your own research. Know your state's homeschooling law. Talk to other divorced and divorcing parents, even if they're not homeschoolers. They can give you tips to help navigate the system.

• Reach out to the experts. I contacted educational experts across the country to talk about learning disabilities and the learning needs of gifted children. I also gathered research articles that supported individualized learning. I kept track of my contacts as well, to show that I had a proven track record of reaching out for help as needed.

• Don't be afraid of the courts. The family court system really is designed to help families. While no system is perfect, everyone we met was respectful and genuinely interested in helping our family craft an innovative educational solution.

• Learn to let go. As a homeschooler, you've probably spent years researching the best educational alternatives for your children, and it can be extremely dishearteningly to realize that you may have to accept something less than the "best." Remember: children can learn in all kinds of situations. And whether you homeschool or not, you will always be their strongest educational influence.

Sure enough -- within months of my husband's announcement, he yelled, "And you know what? I have some problems with the kids' education!" The man who had never expressed any serious misgivings about homeschooling hired a lawyer and immediately began attacking homeschooling.

A Matter of Perception

We'd pulled our oldest son out of school five years earlier, when he was just mid-way through first grade, after we realized that school was stifling our gifted, highly motivated son. Our always-curious child had begun to hate education. He was bored. He had issues on the playground - mostly, his teacher said, because he was more mature than he peers. School also sucked up so much of his day that little time was left for his personal projects or play.

Although the initial adjustment was rough, our son flourished in homeschool, as did his brothers. The boys, ages 12, 10, 7 and 4, pursued personal passions and viewed the world through a lens of constant curiosity. They had friends both in and out of school and were altogether comfortable with their lives.

Their father, however, looked at these same children and saw shortcomings. Boy #2, age 10, was not a fluent reader - a result, he said, of my decision to embrace unschooling. Son #1 struggled mightily with spelling and his handwriting was atrocious. Again, my husband - their father - claimed educational neglect on my part.

At our first joint meeting, I brought along books, samples of the children's work and summaries of learning to share with my husband and his lawyer. His lawyer quickly dismissed our home education as "nothing but TV and computers," without even looking at the materials I'd brought along. I'd come ready to compromise. I'd brought along a list of homeschool co-ops, online classes and area tutors, but hubby said he was worried about my influence on the boys. "Of course they like homeschool," he said. "Who wouldn't, when all they do is watch TV and play on the computer?"

The Legal System Gets Involved

Because the boys' father and I could not agree on the boys' education, the judge assigned to our case ordered a formal custody study. Wisconsin, like most states, differentiates between placement and custody. Placement is the amount of time children spend with either parent; custody refers to legal decision making power. In Wisconsin, the presumption is joint legal custody. In other words, both parents have the right to make major decisions, such as education, for their children, unless one parent cedes that power or a court decides otherwise.

Like most homeschoolers, I'd avoided the system as much as possible. I filed my required paperwork every year, followed the letter of the law and quietly went about my life. Allowing the court to enter our lives was not an easy decision. I was all too aware of recent anti-homeschooling rulings. Homeschooling, in many ways, is still viewed as a fringe activity, and few things are more pro-institution than the court system.

But at that point, I had few options. I could either agree to send our sons to school, or take my chances with the law.

Contrary to my fears, though, our court-assigned social worker and guardian ad litem (an attorney hired to represent the best interests of the children) were not automatically anti-homeschooling. In fact, both were very open-minded. While neither had worked on a homeschooling custody case before, both knew families who homeschooled. Both expressed a genuine interest in our lives. Both saw the educational and social benefits for our children. Neither one seemed overly concerned about the fact that Boys # 1 and 2 were somewhat "behind" in certain subjects; both understood that few kids, in or out of school, are exactly up to par in every subject. Both were also sensitive to the fact that homeschooling was what our kids knew. They understood that any change to the kids' education could be traumatic.

Deciding to Compromise

The boys' dad, however, continued to push for school. When we met an independent educational consultant to discuss the boys' educational needs and how to meet them, Dad refused to consider any possibility of learning disabilities and instead insisted that any academic or social deficits were the result of inadequate teaching. The boys, he believed, belonged in school with professional teachers (where, presumably, all their problems would evaporate).

One month before our scheduled trial date, his lawyer filed an official request for documentation with the courts. The request asked me to admit that I do not have a degree in education, that I had implemented "unschooling," and that I do not regularly plan events with other homeschooled children. It also asked for five years of lesson plans and any calendar, journal or other written documentation (electronic or otherwise) created in the last five years that established the lessons taught.

The requests were outrageous - Wisconsin doesn't even require public school teachers to maintain five years of lesson plans! The document, however, clearly outlined their desire to play hardball.

I gathered any and all documentation available: samples of the kids' work, informal records, old calendars, blog posts, etc. Meanwhile, I contacted acquaintances both in and out of the homeschooling community to provide character references for myself and the children. I created a timeline of educational interventions, showing the ways I'd adapted our homeschooling to meet the kids' needs and to address their father's concerns. I asked friends and neighbors if they'd be willing to testify in court.

Meanwhile, the court continued to push for an amicable settlement. Custody battles are extremely costly and almost never lead to a good outcome, said the guardian ad litem (GAL). The social worker concurred. At their urging, we agreed to a 6-way conference - I and the boys' father, our attorneys, the GAL and the social worker - a week before our trial date.

Ultimately, we came to a compromise based on a section of the Wisconsin law that allows homeschooled children to take up to two classes a semester at a local public school. The children will continue to be homeschooled - but will also take classes at school. It's not an ideal compromise; school, even in small amounts, will interfere with our ability to explore and live in the real world. It will expose our children to peer pressures we'd prefer they avoid. But it will also give them the opportunity to interact with their peers on a daily basis, to see how they stack up against others of the same age and to learn from other teachers.


I won't lie: the kids aren't happy about this new arrangement. In their minds, homeschooling was working, and like most kids, they're reluctant to embrace change. The next few months will be a challenge for our family as we attempt to straddle two worlds, the world of homeschooling and the world of institutional education. I hope we can harness the best of both worlds; I fear we'll be stuck with the worst.

Sometimes I wonder if I should have pushed for a trial, instead of agreeing to a compromise. In our meeting, both the GAL and social worker said that would recommend continuing homeschooling, if it came down to a trial. But the reality is that I was tired of fighting. I was financially depleted. And I certainly didn't want to put my family through any more stress.

I take comfort in the fact, though, that I left the legal system with a positive impression of homeschooling. Now, I hope I can help other homeschoolers who end up in my shoes.

© 2011, Jennifer L.W. Fink


Read more about Homeschooling, Homeschooling and Divorce and the affect of a Homeschooling Custody Case


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