2009-751, In the Matter of Martin F. Kurowski and Brenda A. Kurowski

Law Office of Joshua L. Gordon

No. 2009-751

Laconia Family Division

Michael Donnelly

John Anthony Simmons, Sr. educating children. Courts have neither the mandate nor the expertise to ___________________________ alternative to more traditional public or private schools as the vehicle for LYNN, J. In recent years, home schooling has become a widely used

Welts, White & Fontaine, P.C.

Cornerstone Policy Research, as amicus curiae.

Hampshire, and Catholics United for Home Education, as amici curiae. School Legal Defense Association, Christian Home Educators of New

THE SUPREME COURT OF NEW HAMPSHIRE respondent.

brief and orally), for the petitioner.

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as in Massachusetts, at which time they stipulated to joint legal custody of p. 2 The facts are drawn from the record. The parties were divorced in 1999

how to best educate daughter. rights and joint decision-making responsibility, who have been unable to agree resolving a dispute between two parents, with equal constitutional parenting about the merits of home versus public schooling. This case is only about overtones, it is not about religion. While it involves home schooling, it is not error or unsustainably exercised its discretion. While this case has religious (Supp. 2010). Our only role is to decide whether the trial court committed legal dispute, guided by the best interests standard set forth in RSA 461-A:6, I 2 decision and father sought resolution in court, the trial court had to decide the or enrolled in public school. Because the parties could not reach a joint (1990). have continually disagreed about whether daughter should be home-schooled capable of repetition yet evading review. Appeal of Hinsdale Fed. of Teachers, 133 N.H. 272, 276 they also have equal constitutional parenting rights. Yet, over the years, they conclude that a decision on the merits is justified because the case involves a matter which is joint authority to make decisions relating to her education. As two fit parents, event, we note that the question of mootness is not subject to rigid rules, id. at 255-56, and See Batchelder v. Town of Plymouth Zoning Bd. of Adjustment, 160 N.H. 253, 255 (2010). In any have had joint parenting responsibility for daughter at all times, including the only, and that school year is now concluded, neither party has suggested that this case is moot. The particular circumstances of this case bear emphasizing. The parties Although the trial court’s order governed placement of daughter for the 2009-2010 school year *

Laconia Family Division (Sadler The respondent, Brenda A. Kurowski (mother), appeals an order of the

the educational placement that is in daughter’s best interests. it represents a sustainable exercise of the trial court’s discretion to determine parenting and religious rights, we affirm the decision on the narrow basis that order on broad grounds, including claims that it violates her constitutional for the 2009-2010 school year. Although mother challenges the trial court’s * to compel the enrollment of their minor daughter (daughter) in public school (Garner, M.), granting the request of the petitioner, Martin F. Kurowski (father),

case. affected by their individual religious beliefs. The case now before us is such a atmosphere – which may be all the more so if the parents’ divergent views are make these difficult and sensitive decisions, often in a highly contentious educational choices for their minor children, however, courts are called upon to suitable education. When divorced parents are unable to agree on such determine, from among these options, which generally provides the most his claim that mother had failed to consult with him on daughter’s education. p. 3 do so.” Ultimately, the trial court denied father’s contempt motion, rejecting to substitute itself as a decision maker and counsel has not asked the Court to the public schools or in any other private school,” and “The Court is reluctant Court resolve the parties’ dispute by directing the mother to enroll the child in Court’s powers are limited.” It noted, “The father is not requesting . . . that the custody breaks down because the parties are unable to reach agreements, the documented the parties’ respective concerns, remarking that “[w]hen joint legal address daughter’s educational needs. In its April 2006 order, the trial court parental devotion and encouraged them to continue to work cooperatively to the conclusion of the hearing, the trial court complimented the parties on their her religious convictions, and explained her objection to public schooling. At described the nature of daughter’s home school education that was based upon testified to conversations the parties had had about daughter’s schooling, diversity and improve her ability to accept differences in his home. Mother desire that daughter attend school outside mother’s home to experience causing her to be uncomfortable in his family environment, and expressed his exclusively with children who are part of her mother’s church and religion, consult with him. In addition, he related his concern that daughter spent time parties testified. Father testified that mother had failed to appropriately A hearing was conducted on father’s contempt motion, at which both

daughter. the parties had had many conversations about the educational plans for decision-making. In her response, mother alleged, among other things, that consult with him with respect to educational plans and involve him in any daughter from her peers. Father asked the trial court to require mother to based upon mother’s religious practice, which had the effect of isolating daughter. He also related his concern that daughter’s home schooling was which he alleged that mother had unilaterally decided to home school 3 to home school her for first grade. In 2005, father filed a contempt motion in Daughter attended a private school for kindergarten and mother decided

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

this move, daughter was about three years old. New Hampshire after mother moved to this state with daughter. At the time of resided primarily with mother. In 2002, the divorce decree was registered in daughter who was an infant. At all times relevant to this appeal, daughter has time to three consecutive weekends from Thursday afternoon through Monday p. 4 January 2010. Also, father sought an immediate increase in his parenting public school classes, and enrolled in public school full time commencing in parenting time. Father sought to have daughter immediately enrolled in three disagreement on daughter’s school placement as well as on father’s routine proposed parenting plans and supplemental pleadings, illustrating their with her home schooling program.” Also in September, the parties submitted winter of her fifth grade year “unless jointly decided that she should continue public school, and that daughter attend a traditional school beginning in the expanded parenting time, that daughter not immediately transition fully into In September 2008, the GAL recommended that father be awarded

reference to that proposal and to [mother’s] proposal for modification if any.” parenting plan and requested the GAL “to conduct her investigation with objection, the trial court granted his request to submit an amended proposed public school and to expand his routine parenting time. Over mother’s equal parenting time,” and he sought both to compel daughter’s enrollment in parenting plan. He alleged that “it is in [daughter’s] best interests to have amend his proposed parenting plan and his pending motion for modification of 2007, before this plan was acted upon by the court, father filed motions to 4 Father submitted a proposed parenting plan in April 2007. In November

request)” and to “file a list of the specific Orders he requests.” permit the Court to determine what legal standard should apply to the allegations, required father to “specifically identify the relief he seeks (so as to appointed a GAL and, without making a finding as to the truth of his modification under RSA 461-A:11 (Supp. 2010). In March 2007, the trial court detrimental to daughter’s physical, mental or emotional health as required for that father had failed to demonstrate that the current parenting schedule was with both parties” and did not recommend a change in parenting time, and alleging that the therapist had noted daughter’s “strong and loving relationship describing the parties’ parental rights and responsibilities. Mother objected, and recommend changes to the parenting schedule, and issue a parenting plan court appoint a guardian ad litem (GAL) to represent daughter’s best interests identified with her mother and her mother’s beliefs. He requested that the agreed that the father-daughter relationship suffered because she strongly interfered with his parental rights. According to father, daughter’s therapist environment are detrimental to daughter’s welfare; and mother repeatedly new child; mother’s choices for daughter’s education, religion and social during his parenting time and has difficulty integrating with his new wife and [mother] and [daughter] attend on a regular basis”; daughter is withdrawn is home-schooled through a program that is affiliated with a church that both father alleged: “At her mother’s insistence, and against [his] wishes, [daughter] seeking to alter the parties’ October 2002 partial stipulation. In the motion, In January 2007, father filed a motion for modification of parenting time, denied mother’s motion to modify the 2008 Parenting Plan to the extent that p. 5 daughter would attend public school in the 2009-2010 academic year. It impossible for them to reach an agreement about this issue,” and ruling that home schooled, and that their level of communication makes it virtually parents “have had a long standing disagreement whether [daughter] should be On July 14, 2009, the trial court issued an order, finding that the

exhibits. mother, father and the GAL testified, and the parties submitted several pending motions, including the school placement issue. At the hearing, were filed by the parties, and a hearing was held on June 2, 2009, regarding recommended that father’s routine parenting time resume. Further pleadings daughter returned to her mother on Sunday evenings. The GAL subsequently reduced father’s time for residential responsibility on a temporary basis so that with him. Without resolving mother’s motion to modify, the trial court slightly with the length of father’s parenting time and that she needed help bonding the GAL filed a motion reporting that daughter was experiencing some difficulty have been negatively impacted by the increased time with [father].” In March, experiencing “extreme difficulty” and that her “emotional and mental health moved to modify the 2008 Parenting Plan alleging that daughter was school to augment her home school education. In February 2009, mother In January 2009, daughter began attending three classes at public

whether the minor child should be enrolled in public school.” Court could schedule a one day hearing after June 1, 2009 on the issue Parenting Plan, the trial court stated that the parties had “agreed that the continue home schooling at that time.” In its order approving the 2008 [daughter’s] transition to public school, unless the parents agree she should January, 2010, when [daughter] is completing fifth grade, to discuss of any other meetings the parents may hold, there shall be a meeting in account that she was still receiving home schooling, and stated: “Irrespective alternating weeks. With respect to daughter’s schooling, the plan took into Thursday afternoon through Monday afternoon, and one week day evening in agreed to expand father’s routine parenting time to alternating weekends from decisions, including daughter’s education and religious training. They also Plan). Under the plan, the parties agreed to joint decision-making on all major plan, which was approved by the trial court in November 2008 (2008 Parenting On September 24, 2008, the parties and the GAL agreed to a parenting

Tuesday evening. father’s routine parenting time to include every other weekend and each enrolled in outside activities.” Additionally, mother proposed a schedule of schooling “[s]o long as she continues to perform well academically and be to full time public school.” Mother sought to continue daughter’s home afternoon “[u]ntil January 2010 or until such time as [daughter] matriculates p. 6 See agreement, and resolved the dispute by applying the bests interests standard. joint decision-making authority concerning daughter, had never reached an approached the school placement issue as one in which the parties, who have request to modify the parenting order.” In its July 2009 order, the trial court 6 characterization of the trial court’s decision as a ruling on “the petitioner’s parenting plan under RSA 461-A:11. This argument rests upon her proved one of the statutory circumstances necessary for modification of a It reasoned, in part: standard to resolve the school placement issue without first finding that father determined that that statute did not apply to the question of school placement. Mother first argues that the trial court erred in utilizing the best interests witnesses. See failure to apply RSA 461-A:11 in her motion for reconsideration, the trial court assigning weight to evidence and assessing the credibility and demeanor of RSA 461-A:4, :6 (Supp. 2010). When mother challenged the trial court’s II The trial court’s discretion necessarily extends to matters such as

161 N.H. __, __ (decided November 30, 2010). involving questions of law, we review such issues de novo. p. 6 See In re Alex C., To the extent an appealing party argues that the trial court committed error the evidence. In the Matter of Hampers & Hampers, 154 N.H. 275, 281 (2006). and the findings of the trial court are binding upon this court if supported by a large extent upon the firsthand assessment of the credibility of witnesses, to resolve. See id. Indeed, resolution of the best interests of a child depends to witnesses, and the weight assigned to testimony are matters for the trial court

id. Conflicts in the testimony, questions about the credibility of that the trial court engaged in an unsustainable exercise of discretion. p. 6 See

responsibilities, our role is limited to determining whether it clearly appears

(quotations omitted). reasonably have been made. In the Matter of Choy & Choy, 154 N.H. at 713 made,” and we will not disturb the trial court’s determination if it could establishes an objective basis sufficient to sustain the discretionary judgment developing a parenting plan”). We consider only “whether the record chapter 461-A include “[g]rant[ing] . . . courts the widest discretion in statute); see also RSA 461-A:2, I(d) (Supp. 2010) (stating that purposes of RSA the Matter of Choy & Choy, 154 N.H. 707, 713 (2007) (decided under former

When reviewing a trial court’s decision on parenting rights and

appeal. The trial court denied both motions, and this appeal followed. requiring that daughter be enrolled in public school pending the outcome of an Mother moved to reconsider the order and to stay that portion of the order some changes to the parenting schedule pursuant to the parties’ requests. she was seeking a dramatic deviation from the existing orders, and ordered motion for contempt, the parties disagreed about whether daughter should be p. 7 consult one another about her education. In the context of father’s 2005 and in 2002, when daughter was three years old, they expressly agreed to The parties have had joint legal custody of daughter since their divorce,

request. We are not persuaded. and that he bore the burden of proof under RSA 461-A:11 to secure his that father petitioned the trial court to order the child to attend public school Mother argues that review of the procedural history of this case establishes [father] wanted that to change the parents were to continue to work together.” [daughter’s] permanent status in home schooling would stand and that if Plan.” She also contends that in 2006, the trial court “determined that “the existing permanent orders, as contained in the September 2008 Parenting According to mother, the trial court’s school placement ruling modified

permanent order Under RSA 461-A:11, “[t]he court may issue an order modifying a

interests standard under RSA 461-A:6. of RSA 461-A:11 was not a prerequisite to the trial court’s applying the best and responsibilities relating to daughter’s education, satisfying the standards order that decided or incorporated a parenting plan establishing parental rights the trial court’s ruling on school placement in this case modified a permanent “parental rights and responsibilities,” see Matter of Muchmore & Jaycox, 159 N.H. 470, 473 (2009). Therefore, unless Mother argues that the trial court’s school placement order did in fact modify concerning parental rights and responsibilities. RSA 461-A:11; see In the its plain terms, RSA 461-A:11 governs requests to modify a permanent order statutorily enumerated] circumstances.” RSA 461-A:11 (emphasis added). By recent practice, it does not modify the existing Orders.

concerning parental rights and responsibilities under [certain

disagree. circumstances permitting modification under RSA 461-A:11 existed.” We contends, the trial court “was bound to first consider whether any include the right to determine where one’s child attends school. Therefore, she

in public school for the 2009-2010 academic year modifies the “in the future.” Even assuming, therefore, that enrolling [daughter] whether [daughter] is home schooled or is attending public school alternatives for the February and April school vacations depending “transition to public school” for [daughter], and . . . it provides for Plan requires the parties to meet in January 2010 to discuss the it does not require that she be home schooled in future years. The that [daughter] was home schooled for the 2008-2009 school year, Although the current [2008] Parenting Plan acknowledges trial court did not modify the joint decision-making authority by, for example, p. 8 and mother shared joint decision-making authority. In its 2009 ruling, the circumstance in which it had to resolve a parenting matter over which father authority in relation to daughter’s school placement, and the trial court faced a The parties reached an impasse regarding the exercise of their joint

resides. at home or in another setting within the school district in which mother 8 rights and responsibilities that governed whether daughter would be schooled decision in 2009, there was no permanent court order concerning parental scheduled in mid-2009. Therefore, prior to the trial court’s school placement and that it would decide the issue after a hearing that was expected to be disputed issue of daughter’s school placement for resolution at a later date, Parenting Plan, the trial court expressly stated that the parties reserved the depending on her school placement. In fact, in its order approving the 2008

authority and governs the parties’ routine residential responsibility. See court, certainly constitutes an order that preserved their joint decision-making The 2008 Parenting Plan, agreed to by the parties and approved by the

schooling at that time.” discuss daughter’s future schooling and established a vacation schedule transition to public school, unless the parents agree she should continue home the school placement issue. At most, the plan required the parties to meet and and (3) required the parents to meet in January 2010 “to discuss [daughter’s] time with a child). However, it does not amount to a permanent court order on school vacations in the event daughter is home schooled or not “in the future,” A:4 (parenting plan included within court judgment providing for parenting responsibility, resides, (2) created alternative schedules for February and April parenting time schedule was incorporated within the court decree); RSA 461- the school district where mother, the parent with primary residential Matter of Muchmore & Jaycox to schooling, the 2008 Parenting Plan (1) required daughter to attend school in, 159 N.H. at 473 (parenting plan governing and established some expanded routine parenting time for father. With respect In the parents’ joint decision-making authority for major decisions such as education, Later, the parties agreed to the 2008 Parenting Plan, which retained the

home schooling or otherwise decide school placement of daughter. daughter’s schooling, the trial court did not render a decision approving the school placement, and encouraged the parties to cooperate in deciding evidence before it would not have supported a request to compel a different public school or in any other private school. Although it remarked that the resolve the school placement dispute or to direct mother to enroll daughter in on educational plans for daughter. It emphasized that it was not asked to merely rejected father’s allegation that mother had failed to consult with him home schooled. However, in denying the contempt motion, the trial court p. 9 9

children, Troxel, 530 U.S. at 68. including a child’s education and religious upbringing. See there is a presumption that fit parents act in the best interests of their their children, see to make decisions concerning the custody, care and control of their children, Jordan v. Rea, 212 P.3d p. 9 919, 926 (Ariz. Ct. App. 2009), and enjoy the fundamental liberty interest to direct the upbringing and education of The United States Constitution protects the fundamental right of parents Matter of Jeffrey G. & Janette P., 153 N.H. 200, 203 (2006). Both parents Constitution in her brief. See upbringing and education of children under their control); see also In the because she does not specifically invoke a provision of the New Hampshire Sisters, 268 U.S. 510, 534-35 (1925) (parents have liberty interest to direct the remedy. We consider her argument under only the United States Constitution concerning the religious upbringing of their children); Pierce v. Society of and the trial court failed to consider a more narrowly tailored, less intrusive traditional interest of parents, protect rights of parents to make decisions daughter to attend public school is not justified by a compelling state interest 205, 213-14 (1972) (Free Exercise Clause of the First Amendment, and the According to mother, the trial court’s decision is erroneous because requiring Due Process Clause of Fourteenth Amendment); Wisconsin v. Yoder, 406 U.S. their children’s education in conjunction with the free exercise of religion. 530 U.S. 57, 66 (2000) (plurality opinion) (parenting rights protected under of their children and undermines the fundamental rights of parents to direct Troxel v. Granville, fundamental rights of parents to make decisions for the training and education attend public school is subject to strict scrutiny because it infringes on the Mother next argues that the trial court’s decision requiring daughter to State v. Dellorfano, 128 N.H. 628, 632 (1986).

subject matter. See placement decision did not modify an existing permanent order concerning that We conclude that the trial court did not err in ruling that its 200 p. 9 9 school

461-A:11 existed. first considering whether circumstances permitting modification under RSA resolving the school placement issue under the best interests standard without novo). Accordingly, we reject mother’s argument that the trial court erred by interpretation of a trial court order is a question of law which we review de

school placement, and that it “would ratify their agreement.” that the parties continued to have the joint authority to agree to daughter’s order denying mother’s motion for reconsideration, the trial court emphasized granting one parent the authority to decide daughter’s schooling. Indeed, in its child.” Jordan p. 10 abrogate a fit parent’s constitutional right to direct the upbringing of his or her

We recognize that the best interests standard “does not and cannot

strict scrutiny review merely because the case involves the fundamental standard to resolve the dispute. The trial court’s decision is not subject to decision was consonant with daughter’s best interests. See respective parenting rights, the trial court properly utilized the best interests Each parent was equally entitled to the presumption that his or her respective Because the parents in this case reached an impasse on the exercise of their making for major decisions concerning daughter, including her education. Anderson, 56 S.W.3d 5, 8 (Tenn. Ct. App. 1999); Jordan, 212 P.3d at 928. Here, after they divorced, the parties agreed to share joint decision-:6; In the Matter of Jeffrey G. & Janette P., 153 N.H. at 203; Anderson v. parental rights in accordance with the child’s best interests. See RSA 461-A:4, court has the authority to adjudicate disputes between two fit parents involving

, 212 P.3d at 928. However, in the context of a divorce, the trial

sharing joint legal custody of their child). best interests analysis to resolve schooling dispute between divorced parents 964 So. 2d 24, 31 (Ala. Civ. App. 2007) (listing cases in which court applies Matter of Jeffrey G. & Janette P., 153 N.H. at 203; see also Morgan v. Morgan, guided by the best interests standard set forth in RSA 461-A:6, I. See In the father sought resolution in court, the trial court was left to decide the dispute, RSA 461-A:4, :6, :11. Because the parties could not reach a joint decision and disputes between parents regarding parental rights and responsibilities. See daughter. The legislature established a procedure for courts to resolve ultimately reached an impasse on the parenting decision of how to educate rights and decision-making authority in a different manner, and they 68. Yet, each parent has chosen to exercise his or her respective constitutional

child’s education and religious training. See constitutional parenting rights and decision-making authority regarding their 744-45 (2002). rights), overruled in part on other grounds by In re Craig T., 147 N.H. 739, Robert H., 118 N.H. 713 (1978) (parent challenging termination of parental school); People v. DeJonge, 501 N.W.2d 127 (Mich. 1993) (same); State v. 1997) (parents challenging state restrictions on the parental decision to home Peterson v. Minidoka County School Dist. No. 331, 118 F.3d 1351 (9th Cir. statutory presumption that unwed father was unfit to parent his child); pursuant to statute); Stanley v. Illinois, 405 U.S. 645 (1972) (father challenging challenging court decision which granted grandparents visitation rights

cases was a court resolving a dispute between two parents with equal cases are readily distinguishable from the case at bar; in none of the cited court’s school placement decision is subject to strict scrutiny. However, these Mother cites several cases in support of her contention that the trial p. 11 [daughter’s] educational setting based exclusively argues that “the trial court committed plain error by ordering a change in 11 Although mother did not raise the issue before the trial court, she now

court under certain limited circumstances. See The plain error rule allows us to correct errors not raised in the trial in which a miscarriage of justice would otherwise result. Id. proceeding. Id. We use this rule sparingly, limiting it to those circumstances that the error was prejudicial; that is, that it affected the outcome of the under the third prong, the party seeking appellate review must demonstrate satisfy the burden of demonstrating that an error affected substantial rights reputation of judicial proceedings. Laramie, 160 N.H. at 432. Generally, to and (4) the error must seriously affect the fairness, integrity or public error; (2) the error must be plain; (3) the error must affect substantial rights; Stone, 160 N.H. 419, 432 (2010). Before we may do so: (1) there must be

if she were an expert.” needs.” Mother contends that “the court clearly relied on the GAL’s opinion as regarding adolescent brain development and [daughter’s] future educational testimony of the [GAL], who admitted she is not a brain expert . . . , yet testified

Our decision is consistent with that of many other courts. See

the other parent’s religious rights.”). that one parent is awarded custody of the children does not, in itself, violate decision was religiously motivated] may be made by the losing party. The fact Any time divorced parents have different religious faiths, [argument that court’s 1242 (Okla. Ct. App. 1997) (“This religious argument is neither new nor rare. nor his right to practice his religion); Hoedebeck v. Hoedebeck, 948 P.2d 1240, that modified visitation because decree neither affected father’s religious beliefs (declining to apply “compelling state interest” standard to review court decree cannot agree); Andros v. Andros, 396 N.W.2d 917, 924 (Minn. Ct. App. 1986) schools, based on best interest of child, where parents with joint legal custody 2007) (trial court has authority to decide between secular and religious the child’s best interest); Yordy v. Osterman, 149 P.3d 874, 876 (Kan. Ct. App. precluding superior court from determining what educational placement is in Jordan, 212 P.3d at 927-28 (father’s religious objection cannot be the basis of implicating the Fourteenth Amendment due-process rights of either parent”); rights concerning their child by applying best interests standard “without divorced parents who share joint legal custody and have equal constitutional 964 So. 2d at 31 (court has authority to resolve educational dispute between

divergent religious convictions. parental right to make decisions for daughter’s education and the parents’ p. 12 12 court sua brain science. Nothing in the record or in the order suggests that the trial least three reasons. First, the GAL expressly stated that she is not an expert in certain that plain error affecting mother’s substantial rights did not occur for at committed any error in the manner mother contends. In any event, we are of the proceeding. established that the trial court committed plain error that affected the outcome After reviewing the record and the order, we doubt that the trial court the opinion.” Given all these circumstances, we conclude that mother has not research goes to the weight of the opinion, rather than to the admissibility of allowing her to express her opinion and ruling that “[t]he testimony about the personal knowledge about the research. The trial court denied the request, research on the basis that mother was not a qualified expert and had no Father objected and moved to strike all of her testimony regarding studies and had convinced her that home schooling was superior to public schooling. herself repeatedly testified to research and studies that she had reviewed which issue of independent research informing the lay opinion testimony. Mother Finally, it is clear on this record that the trial court was fully aware of the

development research. who do not share her position, and her tenuous relationship with her father. the GAL’s recommendation was based upon more than her adolescent brain hindered ability to consider and discuss disparate points of view with others based exclusively upon the GAL’s testimony and, further, the foundation for experience to face situations that will be socially challenging to her, her expressly denying such status. Second, the trial court’s decision was not beliefs with her mother’s, daughter’s limited opportunity in her home school development as those of a qualified expert in the face of the GAL herself her recommendation. These included the strong alignment of daughter’s sponte considered the GAL’s statements on adolescent brain the proper school placement for daughter, she also testified to other reasons for While her research contributed to the GAL’s opinion that public school is

should be spending their [sic causes them to wither away . . . [and] [t]hat, to me, implicates how a child areas of the brain to become strengthened, while not using areas of the brain literature” explains that “the repeated stimulation of brain connections causes

was “not an expert in brain science.” development and active brain skill development.” She also testified that she or not a child should be engaged in activities which promote active brain

undergoes tremendous changes during adolescence. She stated that “the development and attended some seminars, learning that the human brain The GAL testified that she had researched the subject of adolescent brain decisions about how to achieve a productive and satisfying life. p. 13 surroundings in order to grow to an adult who can make intelligent

interaction with a variety of experiences, people, concepts, and

that a child requires academic, social, cultural, and physical an exploration and examination of new things, and by the premise the Court is guided by the premise that education is by its nature

It identified the guideposts it utilized to resolve the parents’ dispute: interaction, social problem solving, and exposure to a variety of points of view.” provide [daughter] with an increased opportunity for group learning, group stated that “the debate centers on whether enrollment in public school will compared to public schooling were not disputed by the parties, the trial court Noting that the relative academic merits of daughter’s home schooling as engages in many social activities that are not related to her church or faith. fulfills the public school requirements for theatre and music, and that she with the national average for children of her class and age group,” that she

well academically and scores above-average in most classes when compared at or superior to grade level.” It also determined that daughter “is doing very social and interactive with her peers, academically promising, and intellectually The trial court found that “[daughter] is generally likeable and well liked,

does the work.” the classes and being familiar with the content and being available while she computer at her mother’s residence, and her mother assists her by preparing process, the trial court found that daughter completes “her work on a same age, except for the bible class.” Regarding daughter’s home school the school district, was “comparable to the public school curriculum at the spelling, Spanish and bible class.” It found that this curriculum, approved by included “math, reading, English, social studies, science, handwriting and work daughter performed at home, the trial court found that the curriculum physical education at a public school in Meredith. With respect to the school attending a monthly theater class and weekly classes in art, Spanish and consisted of performing school work at home, taking private music lessons, and of father and mother. It found that daughter’s home school experience evidence before it, including the GAL’s report and testimony, and the testimony respect to daughter’s schooling, and the general nature of the testimony and The trial court related some of the history between the parties with

arguments. the essential features of the trial court’s decision in order to give context to her trial court’s specific reasoning, findings and rulings. Accordingly, we set forth Mother’s remaining arguments involve allegations of error regarding the

p. 14 mother’s church or shared her faith. She also testified that the GAL refused to interview several of her personal references solely because they either attended mother’s testimony. For example, mother testified that the GAL decided not to recollection of the GAL’s statements and conduct, and the GAL disputed With respect to the GAL’s investigative decisions, mother testified to her

of the GAL report. the tenets of that faith. We render the same conclusion regarding the content disparage the fact that daughter and mother have a certain religious faith or communicate with others who have, differing viewpoints. The GAL did not concern about daughter’s ability to mentally process, as well as appropriately of the GAL’s entire testimony, we conclude that the GAL was expressing her starting public school as soon as possible.” Viewing these statements in light thinking really causes me to believe that [daughter] would be best served by mom’s – the rigidity of her mom’s religious beliefs and how that orders her daughter is “very adultified and highly identified with her mom’s views and her areas of consideration, and shut out the thinking about points of view”; and 14 she – the way her religion causes [daughter] to shut out points of view and statements: “My recommendations have been somewhat swayed by the way With respect to the GAL’s testimony, mother isolates the following

not to review Christian-based home school research that she provided. the GAL’s decisions not to interview mother’s Christian personal references and her testimony, a GAL report identifying religious issues and father’s views, and the GAL’s alleged bias, mother points to statements that the GAL made during testimony of the GAL, who was allegedly biased against religion. To illustrate Mother contends the trial court was improperly influenced by the

agreement.” that “if they were to agree to either alternative, [it] would ratify their Christian school or other school with a religious educational program,” and public school classes), and authority to agree that [daughter] attend a continue the hybrid approach they have been using (home school plus some reconsideration, it emphasized that the parties had the “authority to agree to their own religious beliefs.” Also, in its order denying mother’s motion for ability to provide [daughter] with religious training or to share with [daughter] The trial court declined “to impose any restrictions on either party’s

school.” concluded that “it would be in [daughter’s] best interests to attend public Ultimately, by a standard of preponderance of the evidence, the trial court convictions had on her “interaction with others, both past and future.” The trial court remarked that it considered the impact that daughter’s religious training of his or her child solely in relation to the welfare of the child. See p. 15 and responsibilities matter, the trial court may consider a parent’s religious When applying the best interests standard to decide a parenting rights

1242 (“the court may not decide that one religion is better or worse than the weight to be given testimony, are within the trial court’s discretion. In the 413-15 (1997); Sanborn, 123 N.H. at 749; see also Hoedebeck, 948 P.2d at jeopardized by that religious training. See testimony and questions about the credibility of witnesses, and determining Chandler v. Bishop, 142 N.H. 404, behaviors exhibited during the investigation. Resolving conflicts in the her child only if substantial evidence shows that the child’s welfare was in fact that it had credited the GAL’s recollection as to her statements made and best interests). The trial court can restrict a parent’s religious training of his or reconsideration, the trial court rejected mother’s claim of GAL bias, reiterating superior court from determining what educational placement is in the child’s [mother’s] testimony.” In its order denying mother’s motion for at 928 (father’s religious objection cannot be the basis of precluding the reliable, and . . . considered this finding in analyzing the reliability of the rest of Sanborn v. Sanborn, 123 N.H. 740, 748-49 (1983); see also Jordan, 212 P.3d In its order, the trial court found “the [GAL’s] recollection and testimony

defense of her religious beliefs.’” [daughter] may be too ‘rigid’ on ‘questions of faith[,]’ and too ‘vigorous [in] her parents.” She argues that the trial court “was wrong to opine that daughter needed to be exposed “to other religious views contrary to the faith of encourage [daughter] to adopt her religious beliefs,” and suggested that daughter’s religious convictions, implied that “it was improper for [mother] to preferred father’s viewpoint on the need for tolerance and diversity over her and Mother also contends that the trial court’s decision impermissibly

the absence of religious bias. the trial court unsustainably exercised its discretion in that regard. otherwise explained her conduct and statements in a manner that indicated Matter of Choy & Choy, 154 N.H. at 713. Mother has not persuaded us that religion.” The GAL also denied other allegations attributed to her by mother, or focus only on the “best interest of this child, and it’s not necessarily about that she had sought to “keep separate the issues of church and state” and religious beliefs. Indeed, regarding her investigative decisions, the GAL stated teacher. She denied harboring any bias against daughter’s or mother’s mother had requested, such as daughter’s gymnastics instructor and piano material mother had provided, and interviewed some of the people whom In contrast, the GAL testified that she had reviewed some home school

was “basing her opinion on concerns of [mother’s] faith.” based. I don’t want to hear it.” Mother averred that she believed that the GAL which daughter became angry with her therapist when the therapist did not p. 16 her religious convictions. For example, the GAL testified to a situation in interacting with others, particularly her father, when they did not agree with Specifically, evidence was presented that daughter exhibited difficulty

these statements. [mother’s] faith are not the subject of the Court’s inquiry.” The record supports want to spend eternity with her by adopting her faith. The specific tenets of because [daughter] was unhappy that her father does not love her enough to 16 her development in other areas”; and “The evidence about faith is only relevant of those tenets was impacting her feelings toward her father and might impact [daughter] suggesting that [daughter’s] application of the logical consequences [mother’s] faith [was] only admitted because of statements and behaviors of mother’s and daughter’s religion: “Evidence of some of the specific tenets of court further set forth the context in which it considered the evidence involving past and future.” When denying mother’s motion for reconsideration, the trial considered only the impact of those beliefs on her interaction with others, both dispute, it had “not considered the merits of [daughter’s] religious beliefs, but context, the trial court remarked that when ruling on the school placement Although some of the evidence recited by the trial court had a religious

majority of all of her other time with her mother.” likely was the effect of “spend[ing] her school time with her mother and the vast strong adherence to religious convictions that align with her mother’s beliefs daughter’s religious beliefs. The trial court also remarked that daughter’s religious beliefs; and mother’s acknowledgement of the strength of her and viewpoints to decrease his daughter’s “rigid adherence” to her mother’s relationship with her father; the father’s desire to expose daughter to different GAL’s concerns about the impact of daughter’s religious beliefs on her daughter “appeared to reflect her mother’s rigidity on questions of faith”; the the GAL’s account of daughter’s interaction with her counselor in which presented that involved mother’s and daughter’s religious beliefs, including: her religious faith. In its order, the trial court referred to the evidence adequate exposure to differing viewpoints, including people who do not share in part, from his concern that her home school experience did not allow her convictions. Father’s decision to place daughter in public school arose, at least decision to home school was, at least in part, motivated by her religious been a pervasive part of the parties’ school placement dispute. Mother’s There is no doubt that mother’s and child’s religious convictions have

Sanborn, 123 N.H. at 748 (reviewing court’s decree in light of the record). impermissible religious grounds in the manner alleged by mother. See whether it decided daughter’s best interests regarding her school placement on children”). We review the trial court’s order in light of the record to determine another, but it does have the duty to determine the best interests of the p. 17 17

for secular reasons only, court order did not give rise to First Amendment, religious convictions. See language of order indicates that court compelled attendance in public school beliefs. Nor did the court criticize the merits of mother’s and daughter’s See Von Tersch v. Von Tersch, 455 N.W.2d 130, 135 (Neb. 1990) (because daughter’s beliefs or disapproval regarding her vigorous defense of her religious her welfare when resolving the school placement dispute between the parents. The trial court did not express disfavor regarding the religious nature of trial court properly considered daughter’s religious beliefs only in the context of daughter his or her own religious beliefs. Accordingly, we conclude that the parent’s ability to provide daughter with religious training or to share with the trial court emphasized, its order did not impose any restrictions on either it made provision for his religious holidays but not for mother’s). Indeed, as N.H. at 748-49 (court decree advanced preference for father’s religion because child, not to expression or content of religious beliefs); compare Sanborn, 123 references related to manner in which father chose to impart religious beliefs to

exempt such acts from consideration, no matter the impact on the children.”). the parents take, simply because the actions are labeled religious would be to Hoedebeck, 948 P.2d at 1242 (“To fail to consider the impact of certain actions primarily resided with, and had been primarily educated by, her mother. See amount of time she spends with her mother, considering that daughter found that daughter’s firm religious convictions likely stemmed from the encouraging daughter to share her religious views. Rather, the trial court contention that the trial court expressed disapproval of her actions in problem solving and exposure to a variety of points of view. We reject mother’s It also considered the benefits of group learning, group interaction, social viewpoint on a subject matter, whether or not the topic is religious in nature. having the ability to openly communicate with others who have a different beliefs of her parents. Instead, it considered the importance of daughter to be exposed to other religions that were contrary to or different from the In its order, the trial court did not express a belief that daughter needed

She turns away. You know, she just really can’t go any further.” to her about a religious belief, she doesn’t know what to do. She clams up. with [daughter] . . . when you question her beliefs, or you present another idea somebody is going up against her,” and, “when you have a serious discussion respond and she automatically thinks that somebody’s attacking her or anything that goes against what she believes in, she doesn’t really know how to religion, she has a real, real hard time with it.” He also testified, “if there’s ever from what she has been told by her mom is either right or wrong, based on this doesn’t believe in [daughter’s] religion, if somebody does something differently have with daughter about her religious beliefs, and explained “if somebody [therapy] session.” Father testified regarding some conversations he tried to read certain religious materials provided by daughter and “closed down in the in daughter’s best interests. We fail to see how the parameters set forth by the p. 18 schooling. Their dispute centered upon which academic experience would be did not revolve around the relative academic merits of public and home As the trial court noted, however, the dispute between the parties in this case of certain academic areas, such as science, mathematics, reading and writing. Turning to RSA 193-A:4, I, the statute defines home education to consist

not in any way contravene RSA 193-E:2. 193-E:1, I. The parameters the trial court enumerated to guide its decision do 18 political systems of a free government, now and in the years to come.” RSA successful participation in the social, economic, scientific, technological, and opportunity to acquire the knowledge and skills necessary to prepare them for public elementary and secondary education shall provide “all students with the a changing society.” RSA 193-E:2, VII. Also, the legislature declared that lifelong learning . . . to enable them to learn, work, and participate effectively in education provided through the public school system, including “[s]kills for E:2 or RSA 193-A:4, I. RSA 193-E:2 sets forth the criteria for an adequate Nevertheless, mother contends that the trial court, sua become a productive and satisfied adult were not inconsistent with RSA 193- the evidence, rather than to suggest or apply a different educational standard.” to the nature of education and foundational skills necessary for a child to experience of home schooling and the experience of public schooling, based on and RSA chapter 193-A (2008 & Supp. 2010), we conclude that its references court explained that it “intended to illuminate the difference between the placement dispute in accordance with RSA chapter 193-E (2008 & Supp. 2010) and satisfying life.” In denying mother’s motion for reconsideration, the trial Without deciding whether the trial court was bound to resolve the school an adult who can make intelligent decisions about how to achieve a productive variety of experiences, people, concepts, and surroundings in order to grow to that “a child requires academic, social, cultural, and physical interaction with a “education is by its nature an exploration and examination of new things,” and resolve the parents’ school placement dispute, the trial court stated that purpose of education. In its order, in identifying the parameters it utilized to interests standard by basing its decision upon an unsupported definition of the Mother next argues that the trial court erroneously applied the best

requirements for home school education under RSA 193-A:4, I (2008). under RSA 193-E:2 (2008) and fails to account for the educational and that the definition is at odds with the purpose of public school education own definition of the purpose of education without citing any legal authority,

offend First Amendment Establishment Clause). preferences and focusing upon other important factors, court order did not dispute on child’s school placement by disregarding conflicting religious freedom of religion issue); Yordy, 149 P.3d at 876 (when resolving parenting half hours per day, and there was evidence that daughter was “bored” with, p. 19 necessary. This process encompassed approximately three to three and oneengaged in some discussion with daughter, and replayed a recorded lesson as the recorded lesson. Testimony illustrated that her mother reviewed her work, interactive quality between daughter and the person providing instruction in

mother questions as needed. Evidence established that there was no on a computer at home, completing worksheets or workbooks and asking her English and social studies, primarily by watching recorded lessons by herself daughter learned many of her academic subjects, such as math, reading,

With respect to her home school experience, there was evidence that

sufficient to sustain its discretionary judgment. in favor of public schooling, and that the record establishes an objective basis its order nor the record reveals that the trial court exhibited a presumptive bias learning in the home school environment. We conclude, however, that neither think effectively and critically, solve problems, and acquire skills for lifelong contends that the evidence established that daughter could communicate and excelled in the home school environment and was well-socialized. She also home schooling laws, and its acknowledgement that daughter academically points to the trial court’s findings that she was in complete compliance with findings and with the evidence regarding her home school experience. She compelling daughter to attend public school was inconsistent with its factual argument is based, in part, upon her allegation that the trial court’s decision demonstrated a “per se” bias for public school over home school. Her that public school is “automatically in a child’s best interests” and Finally, mother contends that the trial court erred because it presumed

unsustainable exercise of discretion. See used by the trial court to guide its decision constituted legal error or an decision in light of daughter’s best interests are consistent with RSA 461-A:6, I. (l). We conclude that mother has failed to demonstrate that the parameters The factors the trial court considered to guide its school placement other additional factors the court deems relevant.” RSA 461-A:6, I(a), (c), (d), school and community and the potential effect of any change,” as well as “[a]ny developmental needs,” and “[t]he quality of the child’s adjustment to the child’s including “[t]he relationship of the child with each parent,” “[t]he child’s These criteria are in accord with the factors set forth in RSA 461-A:6, I, foundational skills necessary to become a productive and satisfied adult.

experiences, people, concepts and surroundings, as well as securing academic, social, cultural and physical interaction with a variety of social problem solving, exploration and examination of new things, and RSA 461-A:4. The court’s order refers to such factors as group learning,

education under RSA 193-A:4, I. trial court to resolve the matter did not account for the definition of home discretionary ruling. See p. 20 credibility, or substitute our judgment for that of the trial court on a

afford specific evidence, second guess its decision on matters of witness It is not our role to calculate how much weight the trial court should

interactivity of children of her age. problems presented by a group learning situation and by the social

public school setting in which she would be challenged to solve

emotional development, would be best served by exposure to a [daughter’s] interests, and particularly her intellectual and

social and interactive with her peers” does not render its decision that academically with home education, and is “generally likeable and well liked, participated in several activities outside of her home, performed well

noted the GAL’s conclusion that The trial court’s acknowledgement that daughter successfully differences without wanting to “shut down” or “close[ ] down.” The trial court with others who have differing viewpoints, and learn to openly discuss opportunities to navigate experiences in both social and academic situations The GAL testified that a public school environment would offer daughter 20

the trial court’s decision and we cannot say that it is unreasonable. her interaction with others, including her father, provide an objective basis for with the evidence demonstrating the impact of her religious convictions upon daughter’s experiences in her home school and public school settings, along Choy & Choy, 154 N.H. at 713 (quotations omitted). The evidence concerning determination if it could reasonably have been made. See In the Matter of discretionary judgment made,” and we will not disturb the trial court’s “whether the record establishes an objective basis sufficient to sustain the 281; In the Matter of Choy & Choy, 154 N.H. at 713. Rather, we review only

involving her religious convictions. exhibited difficulty discussing different points of view with him on issues religious beliefs. Father testified to several instances in which daughter relationship with her father was somewhat tenuous as a result of their different “closed down in the [therapy] session.” The GAL testified that daughter’s therapist did not read certain religious materials provided by daughter and to a situation in which daughter became angry with her therapist when the when a person challenged or disagreed with her convictions. The GAL testified with others, testimony showed that she would “shut down” and “clam[ ] up” Regarding the impact of daughter’s religious beliefs on her interaction

well. classes, there was evidence that daughter actively participated and adapted and “lonely” in, this educational environment. Regarding her public school unsustainable exercise of discretion. See p. 21 mother has failed to demonstrate that the trial court’s decision constitutes an interests to attend public school for the 2009-2010 school year. Accordingly, sustain the trial court’s discretionary judgment that it was in daughter’s best

because they lack developed legal argument, Douglas v. Douglas Mother’s remaining arguments either do not warrant judicial review

DALIANIS, C.J.