By Tim Lambert

While the issue of the legality of home schooling in Texas was settled in 1987 in the Leeper v. Arlington ISD case, the decision of which was confirmed by the Texas Supreme Court in 1994, that case dealt primarily with the compulsory attendance laws of the state of Texas. The state had argued in the early 1980s that home schooling was not the same as private schooling and, therefore, children taught at home were not exempt, as were children attending traditional private schools, from the compulsory attendance statutes. In the Leeper case, Texas courts ruled that home schools are private schools in Texas for the purpose of compulsory attendance. Students who are being taught by parents – or one standing in parental authority – with a curriculum designed to cover the basic educational goals of reading, spelling, grammar, math and a study of good citizenship in a bona fide manner are exempt from the state compulsory attendance laws.

Some have advanced the argument that Texas does not recognize graduates of home schools or other unaccredited private schools as high school graduates. However, in 2003, the Texas legislature amended the Texas Education Code by clarifying in HB 944 that “… the State of Texas considers successful completion of a nontraditional secondary education to be equivalent to graduation from a public high school …” In the same session through HB 234 the legislature changed the Family Code to require that home school students be treated equally with regard to child support payments beyond the 18th birthday of the child. Prior to this change, child support was continued only if the child was enrolled in a public or an accredited private school. Custody cases where the divorce decree was filed prior to Sept. 1, 2003 are still subject to the previous law that requires attendance in an accredited school. In 2005 this clarification process continued with HB 614 that amended the Texas Family Code to allow children in foster care to continue to receive support beyond the 18th birthday if they are pursuing a high school diploma. The term accredited was struck to allow that support for children in foster care who are being home schooled.

In spite of these advancements, there is a growing number of Texas court cases involving home schooling related to custody matters. In the event of a divorce, a judge determines which parent shall have custody and/or make educational decisions for the child. While truancy laws in Texas are criminal statutes, custody issues are based on a different legal standard. Custody decisions are made by a judge, based on what he considers to be “in the best interest of the child.”

Practically in custody issues, this means that it does not matter that home schooling is clearly legal in the state of Texas. When there is a disagreement between the parents of a child and the matter is taken to court, a judge then decides whether or not it is in the best interest of that child to be home schooled.

In light of this fact, home school families facing divorce situations or court actions concerning custody of children should carefully consider how they approach this issue. It is always better for parents to work out their differences over educational decisions between themselves rather than allow a judge to unilaterally make that decision. A divorced parent who desires to homeschool his/her children would be wise to win the non-custodial parent’s support for this by providing information about home schooling and its success as well as seeking input on curriculum choices from the non-custodial parent. Annual testing of the children by a third party should be offered to give the non-custodial parent a level of comfort that the children are indeed receiving an adequate education. Every effort should be made to establish an agreeable home school situation supported by both parents. Such an approach is much more likely to avoid a court challenge regarding home schooling.

Should it become necessary to address the issue of home schooling before a family court judge, the most important first step is to find a competent family law attorney who is supportive of home schooling. Attorneys specialize in different areas of law, and it is imperative to be represented by an attorney who is well versed in the family laws of Texas. If one is represented by a family law attorney who is negative toward home schooling, it is very likely that there will not be a positive outcome of the case regarding the desire of the parent to teach the children at home. Those who go through such proceedings with no attorney, with one that is not knowledgeable about family law, or with one not supportive of home education are almost invariably required by the court to place the children in traditional schools.

In these types of cases, home schooling is often challenged generally and specifically. A successful strategy in countering such a challenge is to offer expert witnesses to validate home schooling in general as well as witnesses to support the specific home schooling situation. THSC Association can provide a list of Texas home school experts who may be available to testify in support of home schooling in general. These experts will refer to the overwhelming research available, which provides indisputably that home schooling works academically and socially. Such experts charge a fee and expenses to provide this service. In addition to securing these experts, it would be prudent to present witnesses who know the home school parent and can testify to that parent’s ability and commitment to the children and his/her success in teaching them in the home.

In some cases, the children might be required to be examined by a psychologist for an opinion on the condition of the children and whether or not it would be in their best interest to be taught at home. In those circumstances, it would be very wise for the parent hoping to home school to have a psychologist who is pro-home schooling examine the children and give his opinion as well. If the only psychological report comes from the side opposing the home schooling and/or from a psychologist with a bias against home education, the opinion will most likely be biased against home schooling the children in question.

In view of the potential for challenges of home schooling in custody cases, it is important to have annual testing of the children in order to show that they are doing well academically and making progress in their education. This would also forestall attempts by those who might want to argue that the children are not receiving an adequate education and use that as an excuse to end home schooling for the children.

THSC Association is developing a list of pro-home education family law attorneys as a resource for home school parents who find themselves in these very difficult circumstances. If you are aware of family law attorneys who would be willing to be listed in such a resource, please send that information to the Association so it can be made available.