Whose custody is it, anyway?: ‘Homeschooling’ from a parens patriae perspective

Abstract

Proponents of ‘homeschooling’ routinely claim it is legal for parents to rear their children as they see fit. This view ignores the parens patriae doctrine — the primary legal basis for the judicial regulation of custody and the legislative enactment of compulsory schooling laws for the benefit of all children. This article challenges claims that ‘homeschooling’ is legal (without qualification) with evidence of the continuing vitality of the parens patriae doctrine in two North American jurisdictions. In New York and Ontario, where ‘homeschooling’ is not statutorily prohibited, the state through its legislative and judicial organs continues to limit the custodial authority of ‘homeschooling’ parents on the ground that children’s independent welfare and developmental interests include exposure to public formative influences.