I want to homeschool my children but my ex doesn’t agree!

Posted on Dec 27, 2021 by Katie Carter


There’s no question that coparenting can be really difficult, and that sometimes issues pop up that were unanticipated. Even now, almost two years on, it seems surreal to me that the ongoing pandemic has disrupted so many facets of life that previously we took completely for granted.

For a lot of parents, one of those things is in-person public school enrollment.

I’m not here to comment on the state of education or how schools have handled the pandemic, but there’s no question that, for many parents, it has been an extremely difficult time – and that it has led them to consider making a change. Private schools, for the most part, remained open during the pandemic (though, admittedly, with some major changes), which has led parents to flock in droves to enroll their children.

For many working parents, online learning was untenable – and children were suffering without regular, in person instruction.

For others, keeping their children at home feels like the only option to keep the children safe and their school routine consistent. Many parents, too, have resorted to homeschooling.

Custody is complicated. In fact, to understand how custody is handled in Virginia, it’s important to understand that we divide custody into two categories: legal custody and physical custody. Both are super important, obviously, but each has its own specific meaning and gives parents specific responsibilities.
Legal custody refers to the right to make three types of decisions on behalf of the child: non emergency medical care, religious upbringing, and education. Clearly, a decision about school enrollment (public versus private, in person versus homeschooling) is a legal custody issue.

Physical custody, on the other hand, refers to where the child spends the majority of his or her time. Physical custody can be primary to one parent or the other, shared between the two parties (though you should note that this does not necessarily mean 50/50 custody), or split, meaning that there’s more than one child and that each has his or her own separate custodial arrangement.

Legal custody is what’s important when we’re talking about school enrollment. In most cases, legal custody is awarded jointly because the court views making decisions about these things as incredibly important, and believes that each parent should have input. The problem is – as you can probably already tell – there are two parents and no actual tiebreaking vote there. So, what do parents do when they disagree?

What happens if you want to take up the mantle of homeschooling – but your child’s father is against it?

Ideally, you’ll have a nice conversation and you will reach a consensus. That’s kind of what legal custody is there for – to encourage coparents to collaborate and make decisions together about what’s in the best interests of their children. In a lot of cases, though, especially because these issues are super important ones, it’s not possible for the parents to collaborate and come to a decision.

There can be really strong feelings on both sides that preclude consensus. And, in a joint legal custody situation, no one parent’s ‘right’ is stronger than the other.

It doesn’t matter whether physical custody is primary to one parent – that doesn’t give that parent’s vote more weight. It doesn’t matter whether physical custody is shared or split, either. If joint legal custody is shared, which it almost always is, the parent’s votes are equal.

Who is the tiebreaker? What if they can’t decide?

I am sorry to say but, if the parents can’t reach an agreement, the judge has to be the tiebreaker. It comes down to – as all custody cases do – the ‘best interests of the child’ and making an argument that shows that your point of view, whichever one it is, suits the child’s best interests better.

If you’re in support of the homeschooling arrangement, you’ll want to talk about the in-person options and what’s wrong with them. The cost of private school. Your education and training, and why you’re suited to do this. What homeschool program or co-op you’d become involved with and why it’s going to suit your children best. Their physical and mental health, and why an in person environment is bad or dangerous for them. Whatever the case may be, you’ll need to show evidence, introduce witnesses (regular witnesses and even experts), and make your case.

On the other side, dad will do the same. He’ll talk about how great the schools are, the services the public schools offer, the precautions they’re taking against covid. He’ll talk about socialization of kids and achievement of kids in homeschooling programs. He’ll probably say that you’re not qualified, that you don’t follow through on your commitments, that the kids will lack discipline. Whatever – same as you, he’ll show evidence, introduce witnesses, and try to make his case.

Ultimately, the judge decides, based on the evidence. And then, at that point, you have to live with it. You could appeal a juvenile court’s ruling to circuit court and have a trial de novo, but at some point you have a final ruling and, for better or for worse, you live with it.

What if I don’t want to go to court?

No one WANTS to go to court. And even though this seems like a relatively simple issue, it really isn’t. You’re talking a full trial on the merits of different kinds of schooling; that’s really pretty complicated! We’re talking about teaching styles and options and services available to children – it gets really heavy and really deep really quickly. Judges take issues about education really seriously, too, so you can bet that you’ll be listened to and the case decided on the merits.

I won’t kid you – it’s a TRIAL. It’s hard, expensive, time consuming, and, ultimately, out of your control.

If you don’t want to go to court, you’ll have to decide between the two of you. There’s no other way. Either you collaborate and reach a decision, or you go to court and the judge decides.  In some situations, though a consensus isn’t possible, litigation isn’t really, either – so one parent or the other caves, or lets the other parent do what they wanted and just doesn’t make an issue of it, even if they object continually.  Really, the only way to force the issue is to put it in the hands of a judge.

It’s definitely not easy, especially if you feel strongly (and I’m sure you do) that your way is the right way. Homeschooling, for better or for worse, is a more unusual option, so you can bet that you’ll have to spend a fair amount of time educating the court about its importance, about the curriculum, and outcomes for students. It’s probably a harder case to make than, say, advocating for public school enrollment, which is what’s more typical.

For more information or to discuss your upcoming case with an attorney, give us a call at 757-425-5200.