Anderson v. Anderson

56 S.W.3d 5, 1999 Tenn. App. LEXIS 424, 1999 WL 33434578
Court of Appeals of Tennessee·Decided June 29, 1999·No. 03A01-9810-CV-00366·Published·Cited by 10 cases

Opinions

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 [7]*7her 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.

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 findings, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 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.Ct.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.2d 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.

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.Ct.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 ac[8]*8corded 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 a custodial parent unless these private decisions were illegal or were affirmatively harming the child. Rust, 864 S.W.2d 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 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 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.

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Anderson v. Anderson, 56 S.W.3d 5, 1999 Tenn. App. LEXIS 424, 1999 WL 33434578 (Tenn. Ct. App. 1999).

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