Shahin Damoui, AZ Bar #000000

Ponceau & Roy, P.A.

Attorneys for Defendant
IN THE FAMILY COURT OF NEW YORK,
KINGS COUNTY
MARGARET MURPHY, petitioner of neglect,
and NEW YORK BOARD OF EDUCATION,

Plaintiffs, DEFENDANTS’ MOTION FOR

vs. SUMMARY JUDGEMENT
ANNE GARNETT and JIM MCCARTHY,
unmarried and cohabitating parents,

Defendants.

Anne Garnett and Jim McCarthy (collectively “Defendants”), request from

this Court summary judgement against petitioner Margaret Murphy and New York

Board of Education (collectively “Plaintiffs”) pursuant to Rule 3212 of New York

Civil Practice Law and Rules. Specifically, Ms. Garnett and Mr. McCarthy move

for summary judgement on Plaintiffs’ claim that they violated Article 10, § 1012 of

the New York Family Court Art by home schooling their two children.

All material facts are undisputed and clearly demonstrate that Ms. Garnett

and Mr. McCarthy are entitled to summary judgement against Plaintiffs as a matter

of law because the curriculum they provide their two children satisfies New York

compulsory education laws. In support of this Motion, Ms. Garnett and Mr.

McCarthy respectfully refer the Court to the attached memorandum of points and

authorities.

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 MEMORANDUM IN SUPPORT OF DEFENDANTS’ MOTION FOR
SUMMARY JUDGEMENT

Parents, Ms. Garnett and Mr. McCarthy, seek motion for summary

judgement pursuant to Rule 3212 of New York Civil Law and Procedure. CPLR

3212(a). (2017). A motion for summary judgement can be supported by affidavits,

pleadings, written admissions, and other available proof. CPLR 3212(b). “The

affidavit shall be by a person having knowledge of the facts; it shall recite all the

material facts; and it shall show that there is no defense to the cause of action or

that the cause of action or defense has no merit.” CPLR 3212(b). Even viewing the

facts in a light most favorable to the petitioning party, the Plaintiffs cannot carry

their burden of establishing educational neglect by a preponderance of the

evidence. Ms. Garnett and Mr. McCarthy provided their children with an

educational curriculum in accordance with New York State compulsory education

laws and therefore are entitled to summary judgement as a matter of law.

I. STATEMENT OF FACTS

Other than a few hours of work outside his home per week, Mr. McCarthy

stays home and actively dedicates the majority of his time to “unschooling” his two

children, Rudy and Scarlett. [Ex. 6 at 3.] Ms. Garnett, a Harvard Medical School

alum, also stays at home and “unschools” her children when she is not working.

[Ex. 5 at 5.] Ms. Garnett and Mr. McCarthy have both read countless books on

“unschooling” and are deeply committed to their children’s education. [Ex. 5 at 7.]

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Ms. Garnett and Mr. McCarthy record a major of their children’s educational

activities and projects, and their children maintain journals of their work. [Ex. 6 at

10.] McCarthy and Ms. Garnett provide instruction to their children throughout the

day and into the evening. [Ex. 3.] Mr. McCarthy and Ms. Garnett are dedicated to

providing their children with a quality education, so much so that their home

instruction curriculum is seven days a week. [Ex. 3.]

Ms. Garnett and Mr. McCarthy utilize the textbooks assigned by their

children’s local school district. [Ex. 5 at 9.] Rudy and Scarlett are taught

arithmetic by counting money and comparing the price per product with net

weights. [Ex. 4.] Both children, Rudy and Scarlett, read extensively and are

even well versed in poetry. [Ex. 3.] In Officer Kaplan’s sworn testimony he

stated that upon inspecting the children’s writing journals, he noticed

minimal spelling errors. [Ex. 3.] Officer Kaplan further stated that the

children’s writing organization was advanced for their ages. [Ex. 3.]

Ms. Garnett and Mr. McCarthy also hold a large library with a wide

range of books for their children. [Ex. 3.] Rudy and Scarlett also examine

maps and complete activities that utilize maps from all over the world. [Ex.

4.] Notably, the children know where all the cities are on certain maps. [Ex.

4.] Ms. Garnett and Mr. McCarthy frequently take their children to historical

and art museums. [Ex. 4.] Scarlett has conducted reports on Martin Luther

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King and both children are well versed about the history of New York’s

subway system and have frequented the Museum of the City of New York

multiple times. [Ex. 4.]

Ms. Garnett and Mr. McCarthy also subscribe to Curiosity Box, which

provides a box full of science materials every month. [Ex. 4.] The children

use the materials and conduct science experiments and record their results

and observations. [Ex. 4.] Ms. Garnett and Mr. McCarthy’s “unschooling”

curriculum also provides their children with hygiene standards. [Ex. 4.]

Every morning Ms. Garnett and Mr. McCarthy check that Scarlett has

brushed her teeth and they make sure Rudy has washed his feet. [Ex. 4.]

Physical training and nutrition are major facets of Ms. Garnett and

Mr. McCarthy’s home curriculum. [Ex. 4.] They take their children to yoga

almost daily and Scarlett has been taking swimming lessons at the YMCA.

[Ex. 4.] Ms. Garnett and Mr. McCarthy allow their children to make

breakfast and talk about the nutritional benefits of each ingredient they used.

[Ex. 4.] Ms. Garnett and Mr. McCarthy’s curriculum even includes music

and philanthropy. [Ex. 4.] Scarlett plays the guitar and the children attend

operas at the Metropolitan Opera House. [Ex. 4.] Rudy has learned the

importance of giving back and has created promotional materials for the

local homeless shelter’s annual gala. [Ex. 4.]

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 On May 18, 2017, Ms. Garnett and Mr. McCarthy were served with a

petition for educational neglect of their children Scarlett and Rudy. [Ex. 1 at

5.] Scarlett and Rudy have both shown exceptional abilities in all twelve

required courses. [Ex. 3.] While their curriculum may be unorthodox, Ms.

Garnett and Mr. McCarthy have undoubtedly demonstrated their curriculum

is as effective as traditional schooling, arguably even more effective than

traditional schooling.

II. PARENTS, MS. GARNETT AND MR. MCCARTHY, HAVE

CLEARLY PROVIDED THEIR CHILDREN WITH AN
EDUCATIONAL CURRICULUM THAT IS SUBSTANITALLY
EQUIVALENT TO THE CURRICULUM OF PUBLIC SCHOOLS IN
THEIR DISTRICT IN TIME, ATTENDANCE, AND COURSES;
THEREFORE, THEY ARE ENTITLED TO SUMMARY
JUDGEMENT AS A MATTER OF LAW.

Parents Ms. Garnett and Mr. McCarthy have not violated any New York

State compulsory education laws. Even viewing the facts in a light most favorable

to the petitioning party, the Plaintiffs cannot carry their burden of establishing

educational neglect by a preponderance of the evidence.

The New York Family Court Act was enacted to help protect children from

neglect or mistreatment and the statute permits a family court to intervene against

the wishes of a parent of behalf of the child. FCA § 1012 (2017). Pursuant to the

New York’s compulsory education laws, “A minor is required to attend regularly

as prescribed where he resides, for the entire time the appropriate public schools or

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classes are in session and shall be subordinate and orderly while so attending.”

N.Y. Educ. Law § 3212(1) (McKinney 2017). According to New York’s

corresponding home instruction regulation,

“The purpose of this section is establish procedure to assist

school authorities in fulfilling their responsibility of
determining the competency of the instructor and substantial
equivalence of instruction being provided at home to students
of compulsory school attendance age, and to assist parents to
exercise their right to provide required instructed at home to
such students.” 8 N.Y. Comp. Codes R. & Regs. tit. 8, §
100.10(a). (2017).

New York’s compulsory education laws also require that the parent or

guardian, “Furnish proof that an individual who is not attending instruction

at a public school in the city where the person in parental relation resides is

attending required instruction elsewhere. N.Y. Educ. Law § 3212(2)

(McKinney 2017). Failure to furnish such proof is presumptive evidence that

such individual is not attending.” § 3212(2)(d). The statutory definition of

“minor” is an individual who is less than eighteen years of age. § 3212(6).

“Proof that a minor child is not attending public school in the district in

which the parent resides makes out a prima facie case of educational

neglect.” § 3212(2)(d). However, parents who provide home instruction for

their children can rebut the prima facie case by showing evidence that the

child is receiving the required instruction elsewhere. N.Y. Educ. Law § 3204

(McKinney 2017).

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 In accordance with New York State compulsory education laws, a

parent providing home instruction for their children must provide 180 days

or 900 hours of instruction for the school period from July 1 to June 30. 8

N.Y.C.R.R. § 100.10(f). (2017). Parents are required to maintain attendance

records and must file an annual assessment that include the results of “a

commercially published norm referenced achievement test” or an alternative

evaluation meeting these requirements. 8 § 100.10(c). Also, the parent must

file an annual individualized home instruction plan (IHIP) to the

Superintendent of Schools that contains the following: a list of syllabi,

curriculum of materials, textbooks or plans of instruction to be used in each

required course, dates of submission for quarterly reports. 8 § 100.10(c)(5).

However, a recent court decision held, “A parent’s failure to meet the

procedural requirements-providing notice of their intent to home school their

children, and filing an IHIP and various reports- is not sufficient, alone, to

establish neglect.” In re Samantha P., No. 5128, slip op. at 5 (N.Y. App. Div.

June 25, 2017); See Matter of Kilroy, 121 Misc.2d 98, 101, 467 N.Y.S.2d

318, 321 (N.Y. App. Div. 1983) (holding that a parent alleging attendance at

a nonpublic school is sufficient to satisfy the “full-time instruction”

requirement has the burden of proving that substantially equivalent

instruction by showing that a systematic course of home instruction).

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 Therefore, under New York compulsory education laws, parents must

establish two elements in home instruction to rebut a prima facie case of

educational neglect. First, they must demonstrate that their home instruction

is substantially equivalent in time and attendance as in the policy of the

school district for its own students. Second, they must demonstrate that their

home instruction curriculum and courses are substantially equivalent as in

the curriculum of the school district for its own students. N.Y. Educ. Law §

3212 (McKinney 2017).

A. Parents, Ms. Garnett and Mr. McCarthy Are Entitled to Summary

Judgement Because They Provided Their Children with The
Substantial Equivalent of 180 Days of Instruction Each Year.

According to New York’s Home Instruction Regulation,

“Each child shall attend upon instruction as follows:

(1) The substantial equivalent of 180 days of instruction shall be
provided each school year
(2) The cumulative hours of instruction for grades 1 through
6 shall be 900 hours per year.
(3) Absences shall be permitted on the same basis as provided in the
policy of the school district for its own students.
(4) Records of attendance shall by maintained by the parent and shall
be made available to the school district upon request.” 8 N.Y.C.R.R.
100.10(f). (2017).

There is nothing in the law, under certain circumstances, that prohibits home

instruction as an alternative to public education for children. Matter of

Gregory B., 387 N.Y.S.2d 380, 385 (N.Y. 1976); See In re Foster, 330

N.Y.S.2d 8, 12 (N.Y. 1972) (holding that the parent did not need to avail

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himself of formal educational facilities for his child in order to satisfy

compulsory education laws); Cf. Matter of Franz, 55 A.D.2d 424, 427 (N.Y.

App. Div. 1977) (holding that defendant violated compulsory education laws

when defendant mother, who only had a high school education, set aside

only one and half hours per school day for instruction for her children and

allowed her children’s interests to dictate the subject matter); See Matter of

Kilroy, 121 Misc.2d 98, 101, 467 N.Y.S.2d 318, 321 (N.Y. App. Div. 1983)

(holding that a parent alleging attendance at a nonpublic school is sufficient

to satisfy the “full-time instruction” requirement has the burden of proving

that substantially equivalent instruction by showing that a systematic course

of home instruction).

Parents, Ms. Garnett and Mr. McCarthy undoubtedly satisfy New York’s

compulsory attendance and time regulations for home instruction. Other than a few

hours of work outside his home per week, Mr. McCarthy stays home and actively

dedicates the majority of his time to “unschooling” his two children, Rudy and

Scarlett. Ms. Garnett, a Harvard Medical School alum, also stays at home and

“unschools” her children when she is not working. Ms. Garnett and Mr. McCarthy

have both read countless books on “unschooling” and are deeply committed to

their children’s education. While the defendant mother in Matter of Franz could

not carry her burden because she only provided her children with an hour and half

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of home instruction, Ms. Garnett and Mr. McCarthy dedicate the majority of the

day to “unschooling” their children. Ms. Garnett and Mr. McCarthy record a major

of their children’s educational activities and projects, and their children maintain

journals of their work.

Furthermore, as evidenced by the Record of Activities [Ex. 4.], Mr.

McCarthy and Ms. Garnett provide instruction to their children throughout the day

and into the evening, far surpassing the daily five-hour statutory requirement. Mr.

McCarthy and Ms. Garnett are dedicated to providing their children with a quality

education, so much so that their home instruction curriculum is seven days a week

as opposed to the traditional five-day school week. Therefore, it is clear Ms.

Garnett and Mr. McCarthy provide their children more than the required 900 hours

of instruction per year and their children maintain a regular attendance.

B. Parents, Ms. Garnett and Mr. McCarthy Are Entitled to

Summary Judgement Because Their Home Instruction
Curriculum Was Substantially Equivalent to The Curriculum
in Their School District.

Pursuant to New York compulsory education law regarding the

quality and language of instruction,

“Instruction may be given only by a competent teacher. In the

teaching of the subjects of instruction prescribed by this section,
English shall be the language of instruction, and text-books used shall
be written in English. Instruction given to a minor elsewhere than at a
public school shall be at least substantially equivalent to the
instruction given to minors of like age and attainments at the public

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 schools of the city or district where minor resides.” N.Y. Educ. Law §
3204(2) (McKinney 2017).

Additionally, according to New York’s compulsory courses of study statute,

“The course of student for the first eight years of full time public day
schools shall provide for instruction in at least the twelve common
school branches of arithmetic, reading, spelling, writing, the English
language, geography, United States history, civics, hygiene, physical
training, the history of New York state and science.” § 3204(3)(a).

In Matter of Falk, parents were charged with educational neglect of

their son. Matter of Falk, 110 Misc.2d 104, 111, 441 N.Y.S.2d 785, 790

(N.Y. 1981). The court dismissed the petition because the parents were able

to establish that they were providing their son with instruction substantially

equivalent to that of other children of like age at public schools of the

district where they resided. Id. at 111, 441 N.Y.S.2d at 790. The parents had

lesson plans and kept a journal of their son’s educational activities. Id. at

110, 441 N.Y.S.2d at 789. The parents had over a hundred books in the

children’s library. Id. The son’s daily educational activities included:

spelling, use of the English language, arithmetic by counting money and

utilizing workbooks, going on field trips to historical sites and art museums,

planting seeds to demonstrate how plants grow, listening and singing to folk

music, learning hygiene through preservation of health, sunshine, and

exercise. Id. at 112, 441 N.Y.S.2d at 790. Therefore, the court held the

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twelve required courses were covered and were substantially equivalent to

those in the district’s public schools. Id.

Similar to the parents in Matter of Falk, Ms. Garnett and Mr.

McCarthy provided their children with a substantially equivalent curriculum

to that of public schools in their district. In “unschooling” their children, Ms.

Garnett and Mr. McCarthy covered all twelve required courses in depth as

evidenced by Officer Steven Kaplan’s testimony [Ex. 3.] and Ms. Garnett

and Mr. McCarthy’s Record of Daily Activities [Ex. 4.]. Further, Ms.

Garnett and Mr. McCarthy utilize the textbooks assigned by their children’s

local school district. Akin to the child in Matter of Falk, Rudy and Scarlett

are taught arithmetic by counting money and comparing the price per

product with net weights. Both children, Rudy and Scarlett, read extensively

and are even well versed in poetry. In Officer Kaplan’s sworn testimony he

stated that upon inspecting the children’s writing journals, he noticed

minimal spelling errors. Officer Kaplan further stated that the children’s

writing organization was advanced for their ages. Like the parents in Matter

of Falk, Ms. Garnett and Mr. McCarthy also have a large library with a wide

range of books for their children. Ms. Garnett and Mr. McCarthy examine

maps with their children to instruct them on geography. The children

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complete activities that utilize maps from all over the world. Most notably,

the children know where all the cities are on certain maps.

Additionally, Ms. Garnett and Mr. McCarthy frequently take their

children to historical and art museums. Scarlett has conducted reports on

Martin Luther King and has demonstrated strong interests in seeing a

broader portrayal of the Civil Rights Movement. Both children are well

versed about the history of New York’s subway system and have frequented

the Museum of the City of New York multiple times.

Ms. Garnett and Mr. McCarthy also subscribe to Curiosity Box, which

provides a box full of science materials every month. The children use the

materials and conduct science experiments and record their results and

observations.

Ms. Garnett and Mr. McCarthy’s “unschooling” curriculum provides

their children with hygiene standards. Every morning Ms. Garnett and Mr.

McCarthy check that Scarlett has brushed her teeth and they make sure Rudy

has washed his feet. Physical training and nutrition are major facets of Ms.

Garnett and Mr. McCarthy’s home curriculum. They take their children to

yoga almost daily and Scarlett has been taking swimming lessons at the

YMCA. Ms. Garnett and Mr. McCarthy reinforce nutritional values by

13
allowing their children to make breakfast and talk about the nutritional

benefits of each ingredient they used.

Ms. Garnett and Mr. McCarthy surpass New York’s twelve required

courses for home instruction and their curriculum even includes music and

philanthropy. Scarlett plays the guitar and the children attend operas at the

Metropolitan Opera House. Rudy has learned the importance of giving back

and has created promotional materials for the local homeless shelter’s annual

gala. Therefore, Ms. Garnett and Mr. McCarthy’s “unschooling” curriculum

is substantially equivalent to that of public schools in their district.

III. CONCLUSION

Ms. Garnett and Mr. McCarthy have not violated any New York State

compulsory education laws. Even viewing the facts in a light most favorable to the

petitioning party, the Plaintiffs cannot carry their burden of establishing

educational neglect by a preponderance of the evidence. Ms. Garnett and Mr.

McCarthy provided their children with an educational curriculum that was

substantially equivalent as the curriculum in their school district in time,

attendance, and courses. Therefore, Ms. Garnett and Mr. McCarthy respectfully

requests this Court grant their motion for summary judgement.

DATED this 29th day of June, 2017.

By /s/ Shahin Damoui

Ponceau & Roy, P.A.

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