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Special Situations in Homeschooling Your Child (page 2)

By — Homeschool Association of California
Updated on Dec 16, 2008

B. Homeschooling after a Divorce

Although it is legal to homeschool after a divorce or in a situation where the other parent does not agree with homeschooling, the ultimate decision as to whether you can homeschool your children may be up to the Family Law Court. The judge will make a decision based upon the evidence presented at the court hearing regarding what is in the child's best interest. Generally, courts tend to order that the children remain in the status quo. Children who are enrolled in public school stay in public school, children who are in private school stay in private school, and children who are homeschooled continue homeschooling. If you cannot reach an agreement with your child's other parent, you will need to consult with a local attorney for guidance. HSC can assist your attorney with information about the legality of homeschooling in California and experts favorable to homeschooling.

Before you commence an expensive battle, which invariably hurts the children, it is helpful if you consider other alternatives. It may be helpful if you educate the other parent about the benefits of homeschooling and how that parent can have both more and flexible time with the children because they are not tied to the public school schedule. Involve the parent in the educational process. If finances are the underlying issue, consider whether and how you can work and homeschool your children. It may be that the other parent is concerned about accountability. You can meet this concern by involving the other parent in the educational process, choosing a charter school or independent study program, or involving a third party in the process, such as a tutor or evaluator.

Keep in mind that your goal is to do what is in the best interest of your children. Each custody situation is unique, and your attorney can guide you to choose the best option for your family. If you have the ability to shape the language of the custody agreement, ask that you be given "sole educational custody," which gives you the ability to control your children's education without the other spouse's input.

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C. Contact by Truancy Officers

The compulsory attendance laws are enforced by attendance officers, usually at the district level (and never by the California Department of Education). While most attendance officers work on very serious truancy cases and leave homeschooling families alone, there may be one or two who dislike homeschooling and who may try to investigate families for truancy.

It is extremely rare for truancy officers to come to the door, and the vast majority of homeschooling families never have any contact with these officials. Most (but not all) investigations of truancy cases involving homeschoolers start because the children were removed from a public or private school without first complying with one of the legal ways to homeschool, because they were involved in truancy issues prior to leaving school, or because they had come to the attention of Children's Protective Services for abuse or neglect.

If someone comes to your door, the first thing you should do is ask to see official identification. Do not allow the person in your home unless s/he has a warrant entitling him or her to enter. If you leave that person's presence, such as to retrieve documents, you should shut the door behind you until you return.

Truancy investigations can only be started if officials have the name of a child. If anyone comes asking questions, but does not know your child's name, that person has no authority. Do not tell them your child's name and politely insist that they leave. If s/he does have the child's name, the attendance supervisor (truant officer) is only authorized to verify that the student is enrolled in and attending a legal school. If your child is in a public program, give the truancy officer the administrator's name. If your child is in a private school operated by someone else, you should have a copy of the letter confirming the child's attendance. The attendance officer needs to contact the school administrator for other information. If you operate your own school, then the officer is entitled to verify that your child is attending the private school (which is why you need the letter) and that the "private school has complied with the provisions of §33190 requiring the annual filing by the owner or other head of a private school of an affidavit or statement of prescribed information with the Superintendent of Public Instruction" (§§48321.5 and 48415). Therefore, in the extremely unlikely event that the local attendance officer comes to your door, you should get the binder, referenced earlier in Section II, that has a copy of the filed private school affidavit, attendance records, and the letter on school letterhead confirming that the child is enrolled in and attending that school. (if the school was formed after October 15 in that year, you should have considered whether to file the affidavit or not for that year. See the discussion above at private_school_option.php#affidavit. Neither a truancy officer nor a social worker has the authority to obtain additional information or records. If s/he believes that s/he does, ask her/him to show you the legal authority for the request. You may want to keep a copy of the relevant code sections in your binder.

While providing these documents usually resolves the issues, in rare cases the attendance officer may, on being shown proof of the school's compliance and the child's enrollment, then claim that the private school that the children attend is not legal, and that the children are, therefore, truant. District attorneys have attempted prosecution in a few such cases, although we are not aware of a case where they have been successful. If an attendance officer attempts to escalate a claim, an attorney's help may be needed. Please contact the HSC Legal Team for possible referral to experienced attorneys.

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D. Contact by Children's Protective Services

Although an investigation by Children Protective Services is extremely unlikely, anyone can be the target. All CPS cases start as a result of a referral to a governmental agency. Educational neglect alone cannot be a basis for an investigation and police officers and CPS workers cannot enter your home without a warrant. If CPS gets a report of neglect, they are required to investigate, and that investigation may include a visit to your home. It can be an unnerving and dispiriting experience.

If a social worker or police officer appears at your door, you should first ask to see official identification. Under no circumstances should you let social workers or police officers into your home without a warrant. Moreover, you should never say anything that could be interpreted by the authorities to mean that you gave permission for them to enter your home. If you need to leave their presence, such as to retrieve documents, for example, you should close the door behind you until you return. If they enter your home without your permission and without a warrant, they may be subject to a lawsuit for damages and the evidence they may seize may be excluded from the legal proceedings. Do not give up your constitutional rights.

What happens if a social worker returns with the police? Make sure they have a warrant! Be polite and non-confrontational, but firm. In order to get a warrant, the social worker needs to contact the police, the police must contact the district attorney, and the DA contacts a judge. They need to present credible evidence before a warrant can be issued. If you think there is a likelihood that a warrant could be issued, contact a criminal or juvenile dependency lawyer immediately. If they are able to get a warrant, contact a friend to come over as a witness, to take notes and videotape everything. Call HSC if homeschooling issues might be involved.

Avoiding referrals is the best way to prevent CPS intervention in your homeschooling experience. Compliance with one of the legal ways to homeschool is crucial. The following factors may result in a referral: Pulling children out of public or private school after a dispute with the school (i.e.: ongoing truancy problems); custody battles; welfare referrals; or neighborhood disputes. What can you do if you are in one of the "high-risk" groups for referral? First, it may be in your family's best interest to consider a public independent study program, a charter school offering homeschooling, or a program offered by a commercial private school. Second, know your legal rights.

If you are involved in a custody situation or are investigated by Children's Protective Services, you will need to consult immediately with a local attorney who is familiar with not only homeschool law but also custody and juvenile dependency law. If you ever have any hostile contacts regarding homeschooling, please inform an HSC board member. HSC maintains a list of attorneys and experts with experience in these areas or can assist your attorney with homeschooling questions.

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