Clark v. Reiss, CA91-278
| Decision Date | 20 May 1992 |
| Docket Number | No. CA91-278,CA91-278 |
| Parties | , 75 Ed. Law Rep. 1249 Mary I. CLARK, Appellant, v. Harold R. REISS, Appellee. |
| Court | Arkansas Court of Appeals |
F. Lewis Steenken, Fayetteville, for appellant.
Marcia McAvor, Fayetteville, for appellee.
The parties in this chancery case were divorced in 1989, and the appellant, Mary Clark, was awarded custody of their minor twin daughters. Prior to the fall school semester of 1990, the appellant obtained permission from the Arkansas Department of Education to provide home schooling for her children. In response to a petition filed by the appellee, the chancellor entered a temporary order directing the appellant to keep the parties' daughters enrolled and in attendance at the Kingston, Arkansas, public schools and to refrain from making changes in the children's school enrollment. After a hearing on the merits, the chancellor entered a permanent order denying the appellant the right to remove the children from public school in order to provide them with home schooling. From that decision, comes this appeal.
The appellant contends that the chancellor erred in construing the home schooling statute, Ark.Code Ann. § 6-15-503 (Supp.1991), to require that both parents must consent to a home school education. She also contends the chancellor erred in finding that she was not qualified to educate her children under § 6-15-503. It is unnecessary, however, for this court to address these issues, because the chancellor did not make these findings that the appellant challenges. The chancellor did find, however, that, at this time, it was not in the children's best interest to be withdrawn from public schools in order to be home schooled by the appellant. We cannot say this finding is clearly against the preponderance of the evidence.
Minors are wards of the chancery court, and it is the duty of those courts to make all orders that will properly safeguard their rights. Jones v. Jones, 13 Ark.App. 102, 105, 680 S.W.2d 118, 120 (1984). The prime concern and controlling factor is the best interest of the child, and the court in its sound discretion will look into the peculiar circumstances of each case and act as the welfare of the child appears to require. Id. at 107, 680 S.W.2d at 121. An agreement entered into by a husband and wife relating to the custody of their minor children does not affect the right of a court of equity to award the custody of the children and to make reasonable provisions for their support and education. Penny v. Penny, 210 Ark. 16, 18, 193 S.W.2d 811, 812 (1946); Daily v. Daily, 175 Ark. 161, 164, 298 S.W. 1012, 1013 (1927). Moreover, an award of custody to one parent does not lessen the non-custodial parent's responsibility relative to the children nor does it affect his rights as a parent to provide guidance and to participate in decisions affecting the welfare of the children. See Provin v. Provin, 264 Ark. 551, 555, 572 S.W.2d 853, 855 (1978).
The appellant testified that she is a chiropractor and works three days a week, Tuesday, Thursday and Saturday, and the other days, she stays at home. She testified that, prior to the 1990 school year, she was approved as a home school teacher by the Arkansas Department of Education and educated her children at home for a brief period. She testified that, on the days that she was home, the children worked all day until bedtime with a lot of breaks. She stated that, on the days she works in her office, the girls have a room where they can do things such as their math papers and writing. She stated that they can also go to the library to research social studies projects and things of that nature. She stated that she wants to home school the children because she feels she can supply a better education in the areas of social studies, history, geography, health, and anatomy than is being offered in the public school system. She also testified that she is concerned over the two and one-half hours the children spend on the school bus going to and from school each day. She testified that home schooling would give her more flexibility and she would not have to worry about getting the children to school when the weather is bad. She testified that, although she has had no special training in elementary education, she feels that she could provide a better education than they currently receive.
The appellant admitted that, if she were allowed to home school the children, it would alter the appellee's visitation with them. Currently,...
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