Borgers v. Borgers. , 347 Ga. App. 640 ( 2018 )

FOURTH DIVISION
DILLARD, C. J.,
DOYLE, P. J., and MERCIER, J.
NOTICE: Motions for reconsideration m us t be
physically re ceived in our clerk’s office within ten days
of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
October 18, 2018
In the Court of Appeals of Georgia
A18A0910. BORGERS v. BORGERS.
MERCIER, Judge.
We granted Stefanie Borgers’s application for discretionary appeal in order to
determine whether the trial court erred by (1) modifying custody in a post-divorce
contempt proceeding when no motion to modify custody was made, and (2) ordering
her to cease home-schooling one of her children and to enroll the child in school. For
the reasons that follow, we reverse.
The record shows that Stefanie Borgers (the “mother”) and Brian Borgers (the
“father”) divorced in 2013.1 The final divorce decree (the “divorce decree”) awarded
1
The spelling of the first names of the parties varies in the record. However,
both the Final Order granting their divorce and the order at issue in this case refer to
the parties as “Stefanie” and “Brian,” so we have used these spellings in our opinion.
the parties joint legal custody of their three minor children, but awarded the mother
primary physical custody and final decision-making authority regarding the children.
In the divorce decree, the court “expressed concern as to whether home-schooling is
in the best interests of these children[,]” but did not prohibit the mother from
continuing to home-school the children.
On February 10, 2016, the father filed a “Petition for Contempt and
Modification of Custody” (the “first contempt petition”), which requested that the trial
court hold the mother in contempt for failing to abide by the court-ordered visitation
schedule and parenting plan; compel her to refrain from alienating the children from the
father and to comply with visitation requirements; modify the father’s child support
obligation to reflect his then-current earnings; and award attorney fees to the father. In
the first contempt petition, the father noted: “This Honorable Court, in its [divorce
decree], expressed concern as to whether home-schooling the minor children was in
their best interest; despite the Court’s concern, the Mother continues to home-school
the minor children.” However, despite its title, the first contempt petition did not
request a change in child custody.
On April 27, 2016, the trial court held a temporary hearing “regarding child
support only.” This hearing apparently was not transcribed. The trial court thereafter
2
entered a temporary order modifying the father’s child support obligation and stating
“[a]ll other issues not herein amended shall remain in full force and effect.”
Although the court’s temporary order only addressed child support and
specifically noted that the temporary hearing addressed “child support only,” on
September 2, 2016, the father filed a Petition For Contempt of the Court’s Temporary
Order (the “second contempt petition”), contending that the mother interfered with
court-ordered counseling and was in contempt of the parenting plan. In the second
contempt petition, the father sought, among other things, to have the mother held in
contempt and incarcerated. The second contempt petition did not mention home-
schooling or request a modification of custody.
Following a hearing that apparently was not transcribed, the trial court issued
on June 1, 2017 a “Final Order Regarding Contempt Order and Modification”
resolving both contempt petitions. The court found the mother in contempt of the
court-ordered parenting plan and sentenced her to serve ten days in jail, which
sentence was suspended at the father’s request, subject to other conditions set forth
in the order. The court also set forth a visitation schedule, awarded attorney fees to the
father, and set the case for an August 2017 status hearing. The order specifically stated
3
that “[a]ll other issues not herein amended shall remain the same as previously
adjudicated[.]” With regard to home-schooling, the court stated,
The Court finds it to be a shame that the Defendant Mother has not
taught her children to be independent; the [c]ourt makes the findings
based on the expert witness testifying that the children have issues in
small classes as they have been previously home schooled by the
Mother. The [c]ourt has informed the Mother as it was not requested she
will not change custody[.]
On August 16, 2017, the trial court held a status hearing that apparently was not
transcribed. Following the hearing, the court entered a “Compliance Order” on August
29, 2017, finding that “all parties ha[d] complied with the [c]ourt’s previous final
order.” However, the Compliance Order also stated the following:
The [c]ourt also heard argument concerning the parties’ youngest child’s
schooling. The [mother], through her counsel, presented to the [c]ourt
that since the previous hearing the parties’ youngest child was taken out
of Montessori School and at the time of the hearing was being home
schooled. The [c]ourt, based on the previous recommendations provided
by Dr. Patricia Wright at the May[] 2017 hearing and the [c]ourt’s own
beliefs as to the child’s best interest hereby orders the [mother] to
immediately enroll the child in school and ensure the child is not “home
schooled” for the purposes of the child’s education. The [c]ourt finds
that the child’s enrollment and attendance at the Montessori School
should be convenient for the child and Mother as the Mother is actively
4
employed with the Montessori School and the child would benefit from
the wonderful educational opportunity at the Montessori School.
1. The mother argues on appeal that because the final divorce decree made her
the primary physical custodian and final decision-maker regarding the children, which
included the authority to make decisions regarding the children’s education, the trial
court’s order that she enroll the parties’ youngest child in school, rather than allowing
her to home-school the child, constitutes an improper modification of custody in this
contempt action.
“In a contempt proceeding, as here, the trial court has authority to interpret the
meaning of a divorce decree. In such action, the trial court does not have authority to
modify a final judgment and divorce decree.” McCall v. McCall, 246 Ga. App. 770,
772 (1) (542 SE2d 168) (2000) (footnote omitted). Thus, we first must determine
whether the order at issue here modified the parties’ divorce decree. If so, we must
determine whether the court erred in modifying the divorce decree.
(a) While there do not appear to be any cases specifically holding that an order
directing a child’s final decision-maker to educate the child in a particular manner
constitutes a modification of the final divorce decree, it is clear that “[w]here a child
goes to school is a parental decision,” Daniel v. Daniel, 250 Ga. App. 482, 485 (2)
5
(552 SE2d 479) (2001), and this Court has previously issued a few rulings tangentially
relating to this issue. For example, in McCall, 246 Ga. App. at 771, the mother was
granted sole custody of the children, and the father filed a motion for contempt,
arguing, in part, that the mother had failed and refused to facilitate his receipt of
information about the children’s school work. The trial court granted the father, among
other things, direct access to schools, health care providers, tutors, or therapists to
obtain any information, reports, or records that he desired. Id. at 771-772. We agreed
with the mother that by extending to the father rights reserved to her in the final divorce
decree as the sole legal custodian of the children, the trial court “transformed the final
judgment” and effectively granted a change in custody equivalent to “joint legal
custody,” which it was not authorized to do in a contempt proceeding. Id. at 773-774
(2).
In addition, this Court has not questioned whether actions appealed regarding
a change in a child’s education were properly brought as custody actions. For
instance, in Daniel, 250 Ga. App. at 483, the parties were awarded joint legal custody
of their minor child and the agreement contained no “tie breaking” provision.
Following the divorce, the Daniels began to disagree regarding their child’s education:
the mother wanted to home-school the child, and the father wanted the child to attend
6
public school. Id. The mother filed a petition for a change of custody, requesting that
she be designated the primary decision-maker with regard to the child’s education,
religious training, and health care issues, and the father counterclaimed, requesting that
the trial court make him primary decision-maker regarding his child’s education. Id.
This Court noted, “the modification of custody requested by the Daniels in this case
requires a finding of a material change of condition[,]” Id. at 483 (2), thus implying that
a change regarding which parent has primary decision-making authority over education
is a change in custody.
Similarly, in Fox v. Korucu, 315 Ga. App. 851, 854-855 (729 SE2d 16) (2012),
an appeal of a ruling in a custody modification action, this Court held that a
disagreement regarding a child’s education may constitute a material change in
circumstances sufficient to justify a custody modification if there is evidence of a
material change in circumstances that adversely affects the child. In Odum v. Russell,
342 Ga. App. 390 (802 SE2d 829) (2017), another appeal of an order in a custody
modification action, the trial court modified several parenting provisions of the original
divorce decree, including changing the final decision-making authority about education
from the father to the mother. We held that “the trial court was not authorized to
modify the original custody order by altering parental custody arrangements, which
7
included arrangements over which parent would have final authority over certain
decisions relating to the child” because the trial court had expressly found that there
had been no material change in circumstances. Id. at 393 (1). Likewise, in Terry v.
Garibaldi, 274 Ga. App. 405 (618 SE2d 6) (2005), the mother sought a change of
custody based in part on the parents’ inability to make a decision regarding whether
their child should attend public or private school. Id. at 405-406. The trial court found
that the mother showed a material change in condition based on the parents’ differing
views regarding the appropriate educational setting, but we reversed after finding that
an educational dispute typically is not a material change in condition that will justify a
change of custody, and, further, the court’s order did not indicate that a change in
condition had an adverse effect on the child. Id. at 408-409 (2).
In the case before us, the divorce decree awarded the mother primary physical
custody and final decision-making authority regarding the children, and the mother
decided to home-school the youngest child. However, the father and the trial court
disagreed with this decision, and in the father’s contempt action, the trial court ordered
the mother to enroll the child in private school rather than allowing the mother to
continue to home-school the child. The educational issue in this case, as in the cases
above, is a custody issue. Whether the trial court effectively granted the father the right
8
to make decisions regarding the child’s education or took it upon itself to make this
particular decision, the result is the same: the final decision-maker regarding the
children lost her right to make the final decision about the youngest child’s education.
Thus, the order appealed from effectively modified the divorce decree’s custody
provision.
(b) Finding that the trial court’s order modified custody, we must next
determine whether the trial court was authorized to modify custody in this contempt
action. The argument asserted presents a question of law, and we owe no deference
to the trial court’s ruling. Hammonds v. Parks, 319 Ga. App. 792, 794 (3) (735 SE2d
801) (2012).
We agree with the mother that the court exceeded its authority by entering an
order modifying the respective legal rights of the parents in a contempt proceeding. To
obtain a change of custody, the non-custodial parent must file a new action for that
specific purpose. See OCGA § 19-9-23 (a); McCall, supra at 772 (1) (a contempt
proceeding and a change of custody proceeding must be instituted as two separate
actions).
In this case, the record is devoid of any evidence showing that the father filed
a valid custody modification action. The father’s first contempt petition was entitled
9
“Petition for Contempt and Modification of Custody,” but at no point did he seek a
change of custody, nor did he file a separate modification action. In addition, the
father has not asserted in an appellate brief or otherwise demonstrated that the mother
waived her right to assert the impropriety of the inclusion of a change-in-custody
request in a contempt proceeding. Given that a separate and independent action to
modify custody was not filed as required by OCGA § 19-9-23 (a), and the father has
not demonstrated that the mother waived her rights under OCGA § 19-9-23, the trial
court lacked authority to modify the divorce decree in this contempt action.
2. In light of our holding in Division 1, we need not address the mother’s
contention that the trial court abused its discretion by ordering her to cease home-
schooling the child, when home-schooling “is an accepted, legal form of education in
the State of Georgia.”
Judgment reversed. Doyle, P. J., concurs. Dillard, C. J., concurs fully and
specially.
A18A0910. BORGERS v. BORGERS.
DILLARD, Chief Judge, concurring fully and specially.
The liberty interest of parents to direct the upbringing, education, and care of
their children is the most ancient of the fundamental rights we hold as a people,1 and
is “deeply embedded in our law.”2 This cherished right derives from the natural order,3
preexists government, and may not be interfered with by the State except in the most
compelling circumstances. And while I agree with the majority that the trial court
lacked the authority to alter the parties’ custody agreement in this contempt action, I
write separately to express my serious concerns with the court’s decision to summarily
substitute its judgment regarding the child’s education for the mother’s without
identifying evidence of the compelling circumstances necessary to interfere with her
constitutional parental rights. In doing so, the trial court failed to give sufficient
1
I concur fully in the majority’s thoughtful and well-reasoned opinion. As a
result, it may be cited as binding precedent. See Court of Appeals Rule 33.2 (a) (1).
2
Patten v. Ardis, 304 Ga. 140, 141 (816 SE2d 633) (2018).
3
Id. at 141 (“More than a hundred years ago, this Court identified [the right of
parents to the care, custody, and control of their children] as among the inherent rights
that are derived from the law of nature.”); see Sloan v. Jones, 130 Ga. 836, 847 (62 SE
21) (1908), superceded by statute on other grounds as recognized by Proctor v.
Proctor, 164 Ga. 721 (139 SE 531) (1927); Moore v. Dozier, 128 Ga. 90, 93-94 (57
SE 110) (1907); Rives v. Sneed, 25 Ga. 612, 622 (1858).
2
consideration to the federal and Georgia constitutions, both of which afford significant
protection of a parent’s right to the care, custody, and control of his or her
child—which undoubtedly includes the right to make educational decisions. Our trial
courts must be mindful in every case involving parental rights that, regardless of any
perceived authority given to them by a state statute to interfere with a natural parent’s
custodial relationship with his or her child, such authority is only authorized if it
comports with the long-standing, fundamental principle that “[p]arents have a
constitutional right under the United States and Georgia Constitutions to the care and
custody of their children.”4 In this respect, the Supreme Court of the United States has
4
Clark v. Wade, 273 Ga. 587, 596 (IV) (544 SE2d 99) (2001) (plurality
opinion); see Meyer v. Nebraska, 262 U.S. 390, 399 (43 SCt 625, 67 LEd 1042)
(1923) (noting that the “liberty interest guaranteed by the Fourteenth Amendment [to
the United States Constitution] includes freedom . . . to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home[,] and
bring up children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized at common law as essential to
the orderly pursuit of happiness by free men” (emphasis supplied)); see also Prince v.
Massachusetts, 321 U. S. 158, 166 (64 SCt 438, 88 LEd 645) (1944) (noting that there is a “private
realm of family life which the state cannot enter”); Pierce v. Soc’y of the Sisters of the Holy
Names of Jesus & Mary, 268 U.S. 510, 535 (45 SCt 571, 69 LEd 1070) (1925) (“The
child is not the mere creature of the state; those who nurture him and direct his destiny have the right,
coupled with the high duty, to recognize and prepare him for additional obligations.”); In the Interest of
M. F., 298 Ga. 138, 144-45 (2) (780 SE2d 291) (2015) (“The presumption that children ordinarily belong
in the care and custody of their parents is not merely a presumption of the statutory and common law, but
it has roots in the fundamental constitutional rights of parents. The Constitution secures the fundamental right
of parents to direct the upbringing of their children, and it protects a private realm of family life which the
3
acknowledged that “[t]he liberty interest . . . of parents in the care, custody, and
control of their children—is perhaps the oldest of the fundamental liberty interests . .
. .”5 And while a parent’s right to raise his or her children without state interference is
state cannot enter without compelling justification.” (punctuation and citation omitted)); Brooks v.
Park erson, 265 Ga. 189, 191 (2) (a) (454 SE2d 769) (1995) (“The U.S. Supreme Court has long
recognized a constitutionally protected interest of parents to raise their children without undue state
interference.”); see generally U.S. Const. amend. IX (“The enumeration in the Constitution, of certain
rights, shall not be construed to deny or disparage others retained by the people.”) (emphasis supplied);
U.S. Const. amend. XIV, § 1 (“. . . No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States . . . .”); Ga. Const. Art. 1, § 1, XXIX (“The
enumeration of rights herein contained as part of this Constitution shall not be construed to deny to the
people any inherent rights which they may have hitherto enjoyed.”) (emphasis supplied).
5
Troxel v. Granville, 530 U.S. 57, 65 (II) (120 SCt 2054, 147 LE2d 49) (2000)
(plurality opinion); see id. at 68 (II) (noting the constitutional presumption that “fit
parents act in the best interests of their children”); Parham v. J. R., 442 U.S. 584, 602
(III) (b) (99 SCt 2493, 61 LE2d 101) (1979) (noting that the federal constitution’s
“concept of the family rests on a presumption that parents possess what a child lacks
in maturity, experience, and capacity for judgment required for making life’s difficult
decisions,” and that “natural bonds of affection lead parents to act in the best interest
of their children”); see also 2 ST. GEORGE T UCKER, BLACKSTONE’S COMMENTARIES
WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL
GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA 446
(Birch & Small 1803) (“The duty of parents to provide for the maintenance of their
children is a principle of natural law.”); 2 JAMES KENT, COMMENTARIES ON AMERICAN
LAW 169 (O. Halsted 1827) (noting that “[t]he rights of parents result for their duties
[to their children],” and “the law has given them such authority”); JOHN LOCKE,
S ECOND T REATISE OF GOVERNMENT, Ch. 6, § 71 (Hackett Publishing Co., Inc. 1980,
originally published in 1690) (“This shews the reason how it comes to pass, that
parents in societies, where they themselves are subjects, retain a power over their
children, and have as much right to their subjection, as those who are in the state of
nature.”) (emphasis supplied).
4
largely expressed as a “liberty” interest, the Supreme Court of the United States has
also noted that this right derives from “privacy rights” inherent in the text, structure,
and history of the federal constitution.6
In Georgia, a parent’s natural right to familial relations is also recognized “under
our state constitutional protections of liberty and privacy rights.”7 Indeed, Georgia
courts have repeatedly recognized that “the constitutional right to raise one’s children
is a fiercely guarded right in our society and law, and a right that should be infringed
upon only under the most compelling circumstances.”8 In fact, according to our
6
See Brooks, 265 Ga. at 191-92 (2) (a); see also Clark, 273 Ga. at 606(Thompson, J., dissenting) (“Under the Due Process Clause of the Fourteenth
Amendment, and our state constitution, parents have a fundamental liberty interest and
privacy right in raising their children without undue state influence.” (emphasis
supplied)); see, e. g., Prince, 321 U.S. at 165 (recognizing a parent’s authority over
rearing his or her children and the right of a parent to control over and training of her
child as “sacred private interests” that are “basic in a democracy”).
7
Brooks, 265 Ga. at 192 (2) (a). Cf. Powell v. State, 270 Ga. 327, 330-31 (2)
(510 SE2d 18) (1998) (“[T]he ‘right to be let alone’ guaranteed by the Georgia
Constitution is far more extensive tha[n] the right of privacy protected by the U.S.
Constitution, which protects only those matters ‘deeply rooted in this Nation’s history
and tradition’ or which are ‘implicit in the concept of ordered liberty.’”).
8
In the Interest of D. M., 339 Ga. App. 46, 52 (793 SE2d 422) (2016)
(punctuation omitted); accord In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d
299) (1978); In the Interest of S. O. C., 332 Ga. App. 738, 743 (774 SE2d 785)
(2015); In the Interest of J. V. J., 329 Ga. App. 421, 425 (765 SE2d 389) (2014); In
the Interest of C. J. V., 323 Ga. App. 283, 283 (746 SE2d 783) (2013); In the Interest
5
Supreme Court, “there can scarcely be imagined a more fundamental and fiercely
guarded right than the right of a natural parent to [his or her] offspring.”9 And the
fundamental liberty interest of natural parents in “the care, custody, and management
of their child does not evaporate simply because they have not been model parents.
. . .”10 To be sure, parental rights are not absolute. But when this fundamental liberty
interest is at stake, the court must “give full, fair, and thoughtful consideration to the
serious matter at hand.”11
Suffice it to say, a parent’s right to the care, custody, and control of one’s child
includes a constitutionally protected right to make decisions regarding the child’s
education—including the choice to homeschool.12 Indeed, in addition to the Supreme
of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006).
9
In the Interest of M. F., 298 Ga. at 145 (2) (punctuation omitted); accord
Floyd v. Gibson, 337 Ga. App. 474, 479 (1) (788 SE2d 84) (2016).
10
In the Interest of M. F., 298 Ga. at 145 (2); accord Santosky v. Kramer, 455
U.S. 745, 753 (II) (102 SCt 1388, 71 LE2d 599) (1982); In the Interest of S. O. C.,
332 Ga. App. at 746-47 (3).
11
Floyd, 337 Ga. App. at 479 (1); accord In the Interest of C. H., 343 Ga.
App. 1, 15 (805 SE2d 637) (2017) (Dillard, C. J., concurring fully and specially)
(Certiorari review granted by the Supreme Court of Georgia on June 18, 2018. See
S18C0322.)
12
See Wisconsin v. Yoder, 406 U.S. 205, 231 (IV) (92 SCt 1526, 32 LE2d 15)
(1972) (recognizing “the traditional concepts of parental control over the religious
6
Court of the United States’s landmark decisions in Meyer, Pierce, and Yoder,13 the
fundamental right of a parent to homeschool his or her child is also supported by
Washington v. Glucksberg,14 which held that the federal Constitution “specially
upbringing and education of their minor children recognized in [the United States
Supreme Court’s] past decisions”); Pierce, 268 U.S. at 534-35 (acknowledging “the liberty
of parents and guardians to direct the upbringing and education of children under their control[,]” and noting
that “rights guaranteed by the Constitution may not be abridged by legislation which has no reasonable
relation to some purpose within the competency of the state”); Meyer, 262 U.S. at 400 (“Corresponding
to the [constitutional] right of control, it is the natural duty of the parent to give his children education
suitable to their station in life.”); Clark, 273 Ga. at 593-94 (III) (“[P]arents have the right to establish a
home, direct the upbringing of their children, and control their children’s education, and the state may not
sever the rights of parents in their natural child in a neglect proceeding unless it proves by clear and
convincing evidence that the parents are unfit to raise their children.”); In the Interest of R. B.,___ Ga.
App. ___, ___ (816 SE2d 706) (2018) (Dillard, C. J. concurring specially) (“The liberty interest of parents
to direct the upbringing, education, and care of their children is the most ancient of the fundamental rights
we hold as a people. This most cherished right derives from the natural order, preexists government, and
may not be interfered with by the State except in the most compelling circumstances.”); see also People
v. DeJonge, 442 Mich. 266, ___ (1993) (citing Yoder in concluding that “a teacher certification
requirement is an unconstitutional violation of the Free Exercise Clause of the First Amendment as applied
to” religious homeschooling families); Delconte v. State, 329 SE2d 636, 646 (N.C. 1985) (“[T]he
principles enunciated in Yoder and Pierce raise serious questions as to the constitutionality of statutes which
prohibit altogether home instruction.”); Mazanec v. N. Judson-San Pierre Sch. Corp., 614 FSupp 1152,
1160 (N.D. Ind. 1985), aff’d, 798 F2d 230 (7th Cir. 1986) (citing Pierce and Yoder in holding that
parents have “a constitutional right to educate [their] children in an educationally proper home
environment,” and also expressing doubts as to whether “requirements of a formally licensed or certified
teacher . . . would now pass constitutional muster.”). Cf. OCGA § 20-2-690 (a) (“This subpart recognizes
the existence of public schools, private schools, and home study programs as educational entities.”)
(emphasis supplied); OCGA § 20-2-690.1 (a) (“Mandatory attendance in public school, private school,
or home school program shall be required for children between their sixth and sixteenth birthdays . . . .”
(emphasis supplied)); OCGA § 1-4-14 (“The first week in February of each year is declared to be ‘Home
Education Week’ in Georgia.”).
13
See supra notes 4, 12 & accompanying text.
14
521 U.S. 702 (117 SCt 2258, 138 LE2d 772) (1997).
7
protects those fundamental rights and liberties which are, objectively, deeply rooted
in this Nation’s history and tradition.”15 As one legal scholar has observed,
homeschooling was “not only legal at the very early stages of our ‘history and
tradition,’ but was also the predominate form of education.”16 A parent’s fundamental
right to homeschool his or her children was also, significantly, “recognized and
unchallenged when the Constitution was drafted and when the Fourteenth Amendment
was passed.”17 And while the Supreme Court of Georgia has yet to explicitly declare
that a parent’s right to care, custody, and control of his or her children includes the
right to homeschool them, it is difficult to see how the Court’s reasoning in Patten v.
Ardis—which is steeped in this state’s constitutional and jurisprudential
history18—would not apply with equal force and extend to such a fundamental parental
15
Id. at 720-21 (II).
16
Billy Gage Raley, “Safe at Home: Establishing A Fundamental Right to
Homeschooling,” 2017 B.Y.U. Educ. & L.J. 59, 73 (2017); see also id. at 71-
(chronicling widespread presence of homeschooling in Ancient Greece, Ancient
Rome, Medieval England, and Colonial America).
17
Id. at 78.
18
See generally Patten, 304 Ga. at 141-44 (2). Interestingly, our Supreme Court
rightly recognized in Patten that it had “been less than precise about the particular
provisions of our state constitution that guarantee the right of parents to the care,
custody, and control of their children,” Id. at 143 (2) n.9, explaining that while the Due
Process Clause of the Georgia Constitution (Ga. Const. Art. I, § I, ¶ I) has been
8
duty. 19 There is little question, then, that parents have a fundamental right under the
United States and Georgia Constitutions to homeschool their children.
Nevertheless, here, in addition to disregarding the plain terms of the current
custody agreement, the trial court appears to have given little, if any, consideration of
the mother’s constitutionally protected liberty interest in deciding to homeschool her
child. Indeed, without even referencing the significant liberty interests at stake, the
court questioned and undermined the mother’s choices regarding her child’s
education, ordering her to enroll the child in the Montessori school to “ensure the child
pointed to as one source, “[i]nsofar as the right was already regarded as inherent and
fundamental by the late part of the Nineteenth Century, the Inherent Rights
Clause—which appeared in the Constitution of 1877 and has been carried forward into
every Constitution since—may well constitute another source of the guarantee [Ga.
Const. Art. I, § I, ¶ XXIX].” Id.
19
As one renowned domestic relations treatise explains, “[t]hree leading duties
of parents . . . are recognized at common law; first, to protect; second, to educate;
third, to maintain them.” J. Schouler, A T REATISE ON THE LAW OF DOMESTIC
RELATIONS § 233 (4th ed. 1889) (emphasis in original removed and emphasis
supplied); id. at § 235 (“The second duty of parents is that of education; a duty which
Blackstone pronounces to be far the greatest of all these in importance.”); id. at § 243
(“The rights of parents result from their duties . . . As they are bound to maintain and
educate, the law has given them certain authority over their children, and in support of
that authority a right to the exercise of such discipline as may be requisite for the
discharge of their important trust.”).
9
is not ‘homeschooled’” based on its “own beliefs as to the child’s best interest[.]”20
And while the trial court may be right that it would be more “convenient” for the child
to attend the Montessori school because the mother works there, a parent’s
constitutional right to make educational choices for his or her child is not limited to
those a judge (or any other state actor) deems to be convenient or wise. Thus, even
if the trial court had been authorized to modify the parents’ custody agreement (which
it was not), it did not reference any evidence of the compelling circumstances
necessary to substitute its own preferences as to the child’s education for the mother’s
decision to homeschool her child.21 And when state actors engage in this sort of
Orwellian policymaking disguised as judging, is it any wonder that so many citizens
feel as if the government does not speak for them or respect the private realm of family
life.
20
(Emphasis supplied).
21
See supra note 6 & accompanying text.
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In sum, I take this opportunity, yet again,22 to remind our trial courts that, in
making any decision or taking any action that interferes with a parent-child relationship,
our state statutes are subordinate to and must be construed in light of the fundamental
rights recognized by the federal and Georgia constitutions—which both include a
parent’s fundamental right to homeschool a child. As this Court has rightly recognized,
“[t]he constitutional right of familial relations is not provided by government; it
preexists government.”23 Indeed, this “cherished and sacrosanct right is not a gift from
the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.”24 Thus, regardless
of a court’s personal feelings or perception of a parent’s fitness to care for or retain
22
See, e.g., In Interest of R. B., ___ Ga. App. at ___ (Dillard, C. J., concurring
fully and specially); In Interest of R. S. T., 345 Ga. App. 300, 314-21 (812 SE2d 614)
(2018) (Dillard, C. J., concurring fully and specially); In the Interest of C. H., 343 Ga.
App. at 13-19 (Dillard, C. J., concurring fully and specially).
23
In Interest of E. G. L. B., 342 Ga. App. at 848; accord In the Interest of C.
H., 343 Ga. App. at 18 (Dillard, C. J., concurring fully and specially); see In Interest
of R. S. T., 345 Ga. App. 300, 315-16 (Dillard, C. J., concurring fully and specially)
(“The liberty interest parents have in familial relations with their children is a natural-law
right that has been enshrined in our positive law. It is a right that preexists government
and one that we retain as a people separate and apart from any statute or constitution.”
(footnotes and punctuation omitted)).
24
In Interest of E. G. L. B., 342 Ga. App. at 848 (punctuation omitted); accord
In the Interest of C. H., 343 Ga. App. at 18 (Dillard, C. J., concurring fully and
specially).
11
custody of his or her child, careful consideration of these bedrock constitutional
principles and safeguards must remain central to each case without exception. And
when this fails to occur, we will not hesitate to remind our trial courts of the solemn
obligation they have to safeguard the parental rights of all Georgians.
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