Anderson v. Anderson

Opinion

IN THE COURT OF APPEALS OF TENNESSEE FILED AT KNOXVILLE June 29, 1999

Cecil Crowson, Jr. Appellate C ourt Clerk VICKIE SUE ANDERSON, ) C/A NO. 03A01-9810-CV-00366 ) Plaintiff-Appellant,) ) ) ) ) APPEAL AS OF RIGHT FROM THE v. ) McMINN COUNTY CIRCUIT COURT ) ) ) ) RONNY LEE ANDERSON, ) ) HONORABLE JOHN B. HAGLER, JR. Defendant-Appellee. ) JUDGE

CONCURRING OPINION

The divorce judgment in this case does not address, in

any way, the role or prerogatives, if any, of the joint

custodian, Mr. Anderson, in the formulation of significant

decisions regarding the rearing of the parties’ minor child.

Without question, a decision to home-school a child is a major

decision impacting a child’s development; but we are faced with a

divorce judgment that simply awards joint legal custody with no

further guidance as to what rights such an award grants to a

joint custodian who is not the residential custodian. While

T.C.A. § 36-6-101(3)(A)-(F) sets forth certain rights flowing

from a joint custody award, neither it nor any other statute

known to the undersigned addresses the issue of the right of a

joint custodian to participate in major decisions affecting the

rearing of a child. If and when the concepts embodied in T.C.A.

1 § 36-6-401, et seq., are accorded statewide application, the

problem presented by the divorce judgment in this case may be

rectified. Until that happens, attorneys and judges who craft

joint custody decrees would be well advised to specifically

address the rights and prerogatives of joint custodians in major

decisions affecting their minor children. Such decrees should

also address how to resolve an impasse between the parents.

Alternative dispute resolution should be considered as a possible

option -- one that may be preferable to further burdening an

already overburdened court system.

While I am reluctant to countenance interference of the

state with a parent’s decision regarding how a child is to be

educated, I am persuaded that this is an appropriate case for

such intervention. This is not because of any inherent

deficiency in home-schooling in general. On the contrary,

Tennessee has recognized the legality of home-schooling under

appropriate circumstances. See T.C.A. § 49-6-3050. Rather,

intervention in this case is required because the record before

us raises a serious doubt regarding the ability of Mrs. Anderson

to home-school her child. Since this very major -- and, I

believe, erroneous -- decision to home-school was made in the

face of the opposition of the joint custodian, Mr. Anderson, I

concur in the majority’s decision to affirm the trial court’s

judgment ordering that the child be placed in a regular school

setting. I hasten to add that my concurrence should not be read

as an endorsement of court intervention in every joint custody

case where the parties are unable to agree on what is in the best

interest of their child and the court’s decree regarding joint

2 custody is essentially silent as to the rights of the non-

residential custodian.

__________________________ CHARLES D. SUSANO, JR., J.