The Volokh Conspiracy
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Parental Custody Rights, Homeschooling, Religiosity, Views on "LGBTQ+ Community," and More
Reed v. Reed, an appeal decided Wednesday by the Pennsylvania Superior Court (Judge Mary Jane Bowes, joined by Judges Mary Murray and Jill Beck), involved a paternal grandfather seeking shared legal custody and partial physical custody of two children (N.R. and M.R., ages 8 and 10 as of the time of the appellate decision). Many states allow grandparents shared custody in some situations, especially when their child (the grandchildren's parent) is dead, as was the case here. But, to oversimplify to some extent, they generally require some showing of failings on the part of the other parent.
In this case, the trial court did indeed rule for the grandfather, but the appellate court disagreed. An excerpt from the trial court's opinion (other portions of the trial court's opinion are discussed by the appellate opinion, so I haven't excerpted them here, but you can see a lot more here):
At the custody hearing on March 3, 2025, [Mother] testified that her friend Joanna, who is a member of the "Biker Church" in Boyertown, P[ennsylvania], traveled "in spirit" to [Paternal Grandfather]'s home in California, where she saw [Paternal Grandfather] and his wife talk about [Paternal Grandfather] reporting [Mother] to OCY.
When asked by this Court whether Joanna had any history of mental health treatment or criminal background, [Mother] replied, "Nope." [Mother] further testified that her children and God are ranked equally in terms of importance in her life, however, [Paternal Grandfather]'s counsel offered into evidence a video from [Mother]'s YouTube channel, where [Mother] stated that God comes before her children. When asked by [Paternal Grandfather]'s counsel whether she receives cues from God regarding her children, [Mother] indicated that she is "led to do certain things based on [her] faith with God." When asked by [Paternal Grandfather]'s counsel whether [Mother] is guided by voices or instructions, she simply stated, "Not necessarily. Kind of like you will get an instinct to do something, or your gut feeling about doing something." Notably, [Mother] testified that she has never had any sort of mental health diagnosis and is not willing to be examined as she does not "feel it's necessary" and has "no concerns at all for [her] mental health." …
The trial court granted Grandfather shared legal custody, which required a finding that substantial risk of parental neglect was proved by the statutorily required clear and convincing evidence; the appellate court disagreed. An excerpt from the long appellate opinion:
[T]he court found that Mother "has no interest in providing a proper education and is neglecting to appropriately educate her children." It additionally stated that Mother "barely had a high school diploma" and felt that Mother's desire to homeschool the children was to satisfy her own religious beliefs and personal desires above the educational needs of the girls. The court indicated that it was uneasy about the homeschooling schedule provided by Mother, since it entailed fewer hours of formal education than those undertaken by students in public schools, and believed that M.R. was "miserably failing in a few subject areas and is barely meeting the child testing requirement of 35%."
The court also expressed its concern that Mother allowed the children's medical insurance to lapse for a period of three months and decides to take medical and dental advice from videos she has seen on YouTube. The court's opinion furthermore directed us to its previous written decision, wherein it discussed that Mother declined for N.R. to receive the second MMR vaccine dose recommended by the Centers for Disease Control and that one of the medical documents entered into evidence listed N.R. as being "overdue" for an audiology appointment. The court showed uncertainty as to whether the girls were receiving proper dental care, finding that it was not definitively proven through the admitted exhibits. Finally, it highlighted the testimony that Mother only allows her children to utilize fluoride-free toothpaste….
Upon de novo review, we determine that … Paternal Grandfather did not demonstrate that the girls were "substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity." Concerning the adequacy of the girls' education provided by Mother, we preliminarily note that homeschooling is statutorily permissible under Pennsylvania law. The court did not find, and our review does not bear out, that Mother's homeschooling program fails to comply with the law in any respect…. Dr. McKeon [Mother's homeschool evaluator] noted that Mother appropriately logged the minimum number of education days and had annually submitted the paperwork required by the local school district for homeschooling compliance. Mother's testimony was that she averages approximately three and one-half hours a day of direct schoolwork utilizing a commercial curriculum from Christian Light Education, with Dr. McKeon confirming that this comports with the amount of instruction she observes from many of the families of the 600 students that she oversees.
We also agree with Mother that the court's characterization of M.R.'s standardized test score as "miserably failing" or "barely passing" is unsupported. A standardized testing score placing her in the thirty-fourth percentile overall indicates that M.R. performed better on the exam than one-third of similarly-aged students nationwide. Mother has undisputedly taken steps to address M.R.'s difficulties with reading and spelling by providing her with a tutor, whom she sees weekly. We further note that M.R.'s math and general knowledge scores demonstrated that she is advanced for her current grade level by roughly a year.
Similarly, we cannot conclude that there is evidentiary support for the notion that Mother has placed the girls at substantial risk of neglect relating to their health. Paternal Grandfather presented no evidence that having the children brush their teeth with fluoride-free toothpaste would subject them to harm, or that either girl has any issues relating to her teeth or gums. The same holds true for Mother's decision not to have N.R. immunized with the second shot of the MMR vaccine. Finally, the record supports Mother's contention that she has been tending to N.R.'s needs as it relates to her hearing aid and necessary audiology appointments….
As to the award of partial physical custody, which by Pennsylvania law was governed by a somewhat different standard, the appellate court concluded that the trial court showed enough "partiality and bias by the trial court" to justify reversal:
To begin, the record demonstrates that the court overstepped its bounds in questioning witnesses, often interrogating them for extended lengths of time. See, e.g., N.T., 3/3/25, at 29-33 (questioning Mother's personal beliefs as it relates to acceptance of those in the LGBTQ+ community); id. at 52-54 (chastising Mother for failing to timely submit medical insurance paperwork on behalf of the children); id. at 136-56 (extensively inquiring into the qualifications of expert witness, Dr. McKeon, and the merits of homeschooling more generally, after Paternal Grandfather's counsel completed his voir dire); N.T., 3/13/25, at 47-50 (compelling Dr. McKeon to explain why the Peabody standardized examination, approved by the Commonwealth for homeschooled students, is as good a measure of ability compared to tests taken by public school students); N.T., 4/11/25, at 17-22 (challenging Mother's decision not to have N.R. receive the second shot of the MMR vaccine); id. at 65-67 (same as to Mother's choice to brush the children's teeth with fluoride-free toothpaste); id. at 88-92 (pressing Mother to explain why it is problematic for Paternal Grandfather to allow the girls to watch Disney movies); id. at 93-95 (same as to Mother not permitting her daughters to read the Harry Potter book series); id. at 97-99 (questioning why Mother explained the circumstances of Father's death to her daughters instead of allowing a therapist to do so); id. at 122-31 (interrogating Mother about her schedule for homeschooling the children).
Many of these exchanges, based on the volume of the court's questions, its refusal to accept answers as given, and its tone, portrayed the court as an advocate against Mother…. "Although the law is clear that a trial judge may interrogate a witness, the judge should not assume the role of an advocate, express an opinion on the merits of the case or cast doubt on the witness' credibility." … For example, when Mother explained that she did not want her daughters reading Harry Potter due to its subject matter involving witches, the court called a recess and directed Mother to review the Bible available within the courtroom to locate verses supporting her notion that the Bible speaks out against witchcraft and magic.
The court further devoted significant time to questioning Mother's character witness, Ms. Oliveri, after Paternal Grandfather's counsel completed cross-examination. Particularly, it directed Paternal Grandfather's counsel to re-display exhibits previously admitted during the hearings and confronted her about statements made by Mother in certain YouTube videos, directly challenging Ms. Olivieri's testimony as it related to Mother's religious convictions about whether Jesus accepts those within the LGBTQ+ community.
The record is also littered with judicial comments and questions that appeared outright hostile to Mother, her counsel, Mother's religious affiliation, and the homeschooling system in general. In response to a remark from Mother that homeschooling is not the same as public school in the home setting, the court stated: "I think that that's clear to everybody." On another occasion, when Mother testified that her daughters received counseling, the court asked where and interjected, with apparent exasperation: "Please don't tell me The Biker Church."
After Mother stated that she did not feel it was necessary to go to her local school to determine what it offers because she did not want to send M.R. and N.R. there, the court retorted: "You don't feel it's necessary to educate yourself on that the public school system has to offer your children in terms of an education?" Counsel lodged an objection to this line of questioning, citing Mother's constitutional right to homeschool her children without elucidation, and the court openly stated, "I don't care. I want an explanation."
Additionally, when Mother attested that she did not want financial contributions from Paternal Grandfather because she believed it showed that "he wants another form of control in the girls' life," the court became argumentative. It then asked Mother, "do you not understand" that Paternal Grandfather was trying to "do what he thinks is the best thing for the girls," twice, directly contradicting Mother's belief that Paternal Grandfather is prying into their lives.
The court refused to accept Mother's answer that she forgot to timely submit the paperwork to secure the children's medical insurance, asking her repetitively to explain why she forgot, and openly expressed disapproval of Mother's answers. It also appeared to demonstrate strong feelings on the record with respect to Mother's decision to tithe money, despite the children having their essentials taken care of, as well as Mother's choice not to give Paternal Grandfather the girls' social security numbers based on the fact that she did not trust him. Mother expressed on the stand that she felt the court was placing her religious beliefs on trial, to which the court abruptly cut her off mid-sentence.
Furthermore, the court told Mother's attorney on numerous occasions to "sit down" or "have a seat" after making objections to many of the points discussed above. This was done in conjunction with the court explaining that it independently researched counsel's law firm website to confirm whether he is a Christian lawyer after accusations from Paternal Grandfather on the stand that counsel practices "Christian law" and is "cultish." …
Finally, we consider the court's custody order insofar as it directed Mother to undergo a mental health evaluation…. [T]his requirement was included in the final custody order after [custody] was resolved and does not even require that the results be provided to the court. It is thus clear that the court ordered the evaluation not to benefit it in making its decision, but rather to subject Mother to an examination that may never influence another judicial determination, based solely upon Mother's religious statements. When considered in this context, combined with the various examples of bias and partiality exhibited by the trial court throughout the entirety of these proceedings discussed above, we determine that [the relevant rule] does not support the evaluation, and the court abused its discretion in ordering it. Hence, we also vacate this portion of the order….
{Mother has not requested that this Court remand the matter before another jurist…. As we cannot sua sponte address this claim, and it cannot be raised for the first time on appeal, we do not reach this issue. Should Mother wish to pursue this, she may file a petition for recusal with the trial court upon remand.}
