Homeschooling: Who gets to decide?

Texas authorizes homeschooling of children. As the Texas Homeschool Coalition website points out:

"The law in Texas is one of the most favorable for home educators in the United States, and here people are free to determine the course of their children's education. Texas leads the nation in the number of families who home school."

But if parents are not raising children together, due to divorce, separation, or having never been married, what then? The question arises: Who gets to decide whether our child is homeschooled?

Addressing that question requires breaking it down and looking at various scenarios.

First, if there is no Court Order, then there is no clear answer. Just because Parents are not raising their children together does not mean that there must be a court order. A child can grow to adulthood without mom or dad ever living together or coordinating on how to raise the child – and with no orders from a Court.

In that situation, the person with the actual care, custody, and control of the child would be able to decide to Homeschool on their own. Here, "custody" means the actual physical possession of the child.

However, if there is a Court Order, the place to look is in the Rights and Duties Section of the Custody Order. A Custody Order may be contained within a Divorce Decree, or it may be a stand-alone Order. It may also be called a SAPCR Order.

Once an Order exists, it is subject to being modified under specific circumstances. So, it is important to look at both the Original Order or Original Divorce Decree and any modifications of it.

Any more or less standard SAPCR Order or Divorce Decree has several pages that deal with Rights and Duties. The most important one is considered to be the Right to Designate the Primary Residence of the Child. The next most important rights are usually considered as a group. They are often referred to as "Med, Head, and Ed."

Those are the rights to make Medical Decisions, Psychiatric and Psychological Decisions, and Educational Decisions regarding the child or children.

The Rights regarding Med, Head, and Ed can be assigned to the parents as "Exclusive" Rights, "Joint Rights," or "Independent Rights." In addition to that, the Rights may have conditions or caveats. Typically, a right with a caveat will be something like:

"Mother has the Exclusive Right to make Educational Decisions regarding the children, after consultation with the Father."

How the courts define "after consultation" varies from County to County and Judge to Judge. There is no definition of what that term means unless it has been set in a Court Order.

So, the next consideration after whether there is an Order is: Who has been given the Right to Make Educational decisions?

If the Right has been assigned Jointly, then to comply with the Order, if one parent wants to begin homeschooling a child, they must get the other parent's permission. It's always best to get permission in writing, but there is no legal requirement for that in the Statutes or Case Law.

If the Right to make Educational Decisions has been given to the parents "Independently," then theoretically, either parent could decide to begin homeschooling the child. Of course, if the other parent did not agree with the decision, they could enroll them in a school. If it's a public school, that could lead to Truancy issues, when the child fails to attend on the days he or she is being homeschooled at the other parent's house. And Truancy can lead to serious legal issues for the parents.

If the Right to make the Educational Decisions has been given to one parent, "Exclusively," then that parent is the one that gets to decide whether a child is homeschooled. Note, however, that there are some cases in which the Exclusive Right to make Educational Decisions has been given with a caveat excepting Homeschool.

For example, in In the Interest of Minor Child, a District Court case out of Fort Bend County, Texas, a father was given:

"…the exclusive right, after meaningful consultation with [the mother], to make decisions concerning the children's education, except that he shall not utilize home schooling…"

[Emphasis Added]

2019 Tex. Dist. LEXIS 9846,

However, it is essential to note that just because a parent has the Right to begin homeschooling their child does not mean that it won't come with consequences.

Parents are not free to take the other parent back to Court repeatedly to try to get what they want, but homeschooling may lead to it.

To properly seek a Modification of an Order – that means a new case filed – certain conditions must be met. One viable reason to seek Modification of a Custody Order is if there has been a Material and Substantial Change in the parents or children's Circumstances.

As the Beaumont Court of Appeals recently wrote:

"' Determination of a substantial and material change is not controlled by a set of guidelines; instead, it is fact specific.' Epps, 537 S.W.3d at 243.

Some examples of material and substantial changes include (1) remarriage by a party, (2) poisoning of the child's mind by a party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, and (5) a parent's becoming an improper person to exercise custody. Smith, 546 S.W.3d at 741; In re A.L.E., 279 S.W.3d at 428-29 (noting that this list of material changes is "non-comprehensive").

'Changes in a child's home surroundings or circumstances rendering a conservator unsuitable are examples of the material and substantial changes contemplated by section 156.101(a)(1).' In re J.R.P., 526 S.W.3d 770, 779 (Tex. App.—Houston [14th Dist.] 2017, no pet.)."

In the Interest of A.E.M., 2020 Tex. App. LEXIS 1439

At least one Texas case has found that a parent with the Exclusive Rights on Education beginning to Homeschool is a Material and Substantial Change in Circumstances.

In In the Interest of M.C.K., which was a 2018 case out of one of the Houston Courts of Appeals, the Court gave the following summary of events:

"The dispute in this family law case is who should have the Right to make educational decisions for the child. Mother was awarded that right exclusively when the child was just a baby. Once the child became school-aged, Father sought to share in that Right because he disagreed with Mother's choice of homeschooling.

The issue was tried to the bench, and the trial court sided with Father. The trial court modified the parent-child relationship by granting both Mother and Father the Right to make educational decisions for the child. The trial court further ordered that if Mother and Father cannot come to a consensus, then the child must attend public school."

2018 Tex. App. LEXIS 2932

The more significant issue, though, is that the Mother starting to Homeschool was the sole basis to come to Court. That is, without homeschooling, theoretically, the case would have been dismissed as not showing a Material and Substantial Change.

The Appeals Court stated, "the trial court could have reasonably found that the child had educational and social needs at the time of trial that she did not have at the time of the original Order. Because the trial court could have further found that those needs were not being met through Mother's choice of homeschooling, we conclude that the trial court did not abuse its discretion by finding a material and substantial change in circumstances."

What that means is that the Appellate Court determined that the Father had the Right to bring the Modification case. Therefore, the Trial Court ruling in taking away the Mother's Exclusive Rights on Education was within its power and discretion.

So, who has the Right to decide to Homeschool? It depends. It depends on whether there is an order. It depends on who has been given what rights. And it depends on whether those rights have been granted with any conditions – caveats – on them.

Knowing all of that is a starting point. But the ending point may well be decided once a parent invokes the Right to Homeschool that he or she has if the other parent decides to ask the Court to modify those rights.