In the Matter of Martin F. Kurowski And Brenda A. Kurowski.

• Decision Date: 16 March 2011
• Docket Number: No. 2009–751.,2009–751.
• Citation: 268 Ed. Law Rep. 257,161 N.H. 578,20 A.3d 306
• Parties: In the Matter of Martin F. KUROWSKI and Brenda A. Kurowski.
• Court: New Hampshire Supreme Court

161 N.H. 578

20 A.3d 306

268 Ed. Law Rep. 257

In the Matter of Martin F. KUROWSKI and Brenda A. Kurowski.

No. 2009–751.

Supreme Court of New Hampshire.

Argued: Jan. 6, 2011.Opinion Issued: March 16, 2011.

Law Office of Joshua L. Gordon, of Concord (Joshua L. Gordon on the brief and orally), for the petitioner.John Anthony Simmons, Sr., of Hampton, by brief and orally, for the respondent.Michael Donnelly, of Purcellville, Virginia, on the brief, for the Home School Legal Defense Association, Christian Home Educators of New Hampshire, and Catholics United for Home Education, as amici curiae.Welts, White & Fontaine, P.C., of Nashua (Lisa A. Biron on the brief), for Cornerstone Policy Research, as amicus curiae.LYNN, J.

In recent years, home schooling has become a widely used alternative to more traditional public or private schools as the vehicle for educating children. Courts have neither the mandate nor the expertise to determine, from among these options, which generally provides the most suitable education. When divorced parents are unable to agree on such educational choices for their minor children, however, courts are called upon to make these difficult and sensitive decisions, often in a highly contentious atmosphere—which may be all the more so if the parents' divergent views are affected by their individual religious beliefs. The case now before us is such a case.

The respondent, Brenda A. Kurowski (mother), appeals an order of the Laconia Family Division ( Sadler, J.), recommended by the Marital Master ( Garner, M.), granting the request of the petitioner, Martin F. Kurowski (father), to compel the enrollment of their minor daughter (daughter) in public school for the 2009– 2010 school year.^* Although mother challenges the trial court's order on broad grounds, including claims that it violates her constitutional parenting and religious rights, we affirm the decision on the narrow basis that it represents a sustainable exercise of the trial court's discretion to determine the educational placement that is in daughter's best interests.

The particular circumstances of this case bear emphasizing. The parties have had joint parenting responsibility for daughter at all times, including the joint authority to make decisions relating to her education. As two fit parents, they also have equal constitutional parenting rights. Yet, over the years, they have continually disagreed about whether daughter should be home-schooled or enrolled in public school. Because the parties could not reach a joint decision and father sought resolution in court, the trial court had to decide the dispute, guided by the best interests standard set forth in RSA 461–A:6, I (Supp.2010). Our only role is to decide whether the trial court committed legal error or unsustainably exercised its discretion. While this case has religious overtones, it is not about religion. While it involves home schooling, it is not about the merits of home versus public schooling. This case is only about resolving a dispute between two parents, with equal constitutional parenting rights and joint decision-making responsibility, who have been unable to agree how to best educate daughter.

I

The facts are drawn from the record. The parties were divorced in 1999 in Massachusetts, at which time they stipulated to joint legal custody of daughter who was an infant. At all times relevant to this appeal, daughter has resided primarily with mother. In 2002, the divorce decree was registered in New Hampshire after mother moved to this state with daughter. At the time of this move, daughter was about three years old.

In October 2002, the parties stipulated to a routine residential responsibility schedule that gave father time with daughter one evening per week and on alternate weekends from Friday evening until Sunday evening. They also agreed to “consult with one another with respect to the educational plans for said child.” The subsequent post-divorce proceedings were protracted and we therefore mainly focus on the facts surrounding daughter's education.

Daughter attended a private school for kindergarten and mother decided to home school her for first grade. In 2005, father filed a contempt motion in which he alleged that mother had unilaterally decided to home school daughter. He also related his concern that daughter's home schooling was based upon mother's religious practice, which had the effect of isolating daughter from her peers. Father asked the trial court to require mother to consult with him with respect to educational plans and involve him in any decision-making. In her response, mother alleged, among other things, that the parties had had many conversations about the educational plans for daughter.

A hearing was conducted on father's contempt motion, at which both parties testified. Father testified that mother had failed to appropriately consult with him. In addition, he related his concern that daughter spent time exclusively with children who are part of her mother's church and religion, causing her to be uncomfortable in his family environment, and expressed his desire that daughter attend school outside mother's home to experience diversity and improve her ability to accept differences in his home. Mother testified to conversations the parties had had about daughter's schooling, described the nature of daughter's home school education that was based upon her religious convictions, and explained her objection to public schooling. At the conclusion of the hearing, the trial court complimented the parties on their parental devotion and encouraged them to continue to work cooperatively to address daughter's educational needs. In its April 2006 order, the trial court documented the parties' respective concerns, remarking that “[w]hen joint legal custody breaks down because the parties are unable to reach agreements, the Court's powers are limited.” It noted, “The father is not requesting ... that the Court resolve the parties' dispute by directing the mother to enroll the child in the public schools or in any other private school,” and “The Court is reluctant to substitute itself as a decision maker and counsel has not asked the Court to do so.” Ultimately, the trial court denied father's contempt motion, rejecting his claim that mother had failed to consult with him on daughter's education.

In January 2007, father filed a motion for modification of parenting time, seeking to alter the parties' October 2002 partial stipulation. In the motion, father alleged: “At her mother's insistence, and against [his] wishes, [daughter] is home-schooled through a program that is affiliated with a church that both [mother] and [daughter] attend on a regular basis”; daughter is withdrawn during his parenting time and has difficulty integrating with his new wife and new child; mother's choices for daughter's education, religion and social environment are detrimental to daughter's welfare; and mother repeatedly interfered with his parental rights. According to father, daughter's therapist agreed that the father-daughter relationship suffered because she strongly identified with her mother and her mother's beliefs. He requested that the court appoint a guardian ad litem (GAL) to represent daughter's best interests and recommend changes to the parenting schedule, and issue a parenting plan describing the parties' parental rights and responsibilities. Mother objected, alleging that the therapist had noted daughter's “strong and loving relationship with both parties” and did not recommend a change in parenting time, and that father had failed to demonstrate that the current parenting schedule was detrimental to daughter's physical, mental or emotional health as required for modification under RSA 461–A:11 (Supp.2010). In March 2007, the trial court appointed a GAL and, without making a finding as to the truth of his allegations, required father to “specifically identify the relief he seeks (so as to permit the Court to determine what legal standard should apply to the request)” and to “file a list of the specific Orders he requests.”

Father submitted a proposed parenting plan in April 2007. In November 2007, before this plan was acted upon by the court, father filed motions to amend his proposed parenting plan and his pending motion for modification of parenting plan. He alleged that “it is in [daughter's] best interests to have equal parenting time,” and he sought both to compel daughter's enrollment in public school and to expand his routine parenting time. Over mother's objection, the trial court granted his request to submit an amended proposed parenting plan and requested the GAL “to conduct her investigation with reference to that proposal and to [mother's] proposal for modification if any.”

In September 2008, the GAL recommended that father be awarded expanded parenting time, that daughter not immediately transition fully into public school, and that daughter attend a traditional school beginning in the winter of her fifth grade year “unless jointly decided that she should continue with her home schooling program.” Also in September, the parties submitted proposed parenting plans and supplemental pleadings, illustrating their disagreement on daughter's school placement as well as on father's routine parenting time. Father sought to have daughter immediately enrolled in three public school classes, and enrolled in public school full time commencing in January 2010. Also, father sought an immediate increase in his parenting time to three consecutive weekends from Thursday afternoon through Monday afternoon “[u]ntil January 2010 or until such time as [daughter] matriculates to full time public school.” Mother sought to continue daughter's home schooling “[s]o long as she continues to perform well academically and be enrolled in outside activities.” Additionally, mother proposed a schedule of father's routine parenting time to include every...