The Volokh Conspiracy
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Fortunately, a Florida appellate court reversed this order on Friday, in Perez v. Fay (Fla. Ct. App. Jan. 23, 2015). The mother had lost custody, and allowed only supervised visitation, because of her bipolar disorder (and possibly also because of "two criminal offenses in 2010," though the court doesn't offer many details on that). But the trial court also required that the mother's supervised visitation be only in English:
The court [at first] ordered that the Mother could have daily telephone contact with her daughter at a time to be coordinated with and supervised by the Father. And, because the Father did not speak the Mother's native language—Spanish—the court ordered the Mother to speak only English with her daughter during these daily telephone calls….
[Later, the trial court] made the language restriction during the Mother's interactions with her daughter permanent [including in her in-person supervised visitation].
The court of appeals reversed this limitation (some paragraph breaks added):
[W]e must reverse the trial court's ruling that requires the Mother to speak only English to her daughter at all times. While there may have been some legal justification for limiting the Mother to English when the Father was supervising her time-sharing under the ex parte order, the Father did not ask for this restriction to be made permanent in his Amended Supplemental Complaint for Modification, and the issue was not tried by consent. In the absence of such a request or consent, the trial court had no authority to make this restriction permanent.
Moreover, even if the Father had requested such a ruling in his pleadings, he presented no evidentiary basis to support it. The only possible basis for such a ruling was an ex parte letter sent by the time-sharing supervisor to the court requesting an order requiring the Mother to speak to her daughter only in English because the time-sharing supervisor did not speak Spanish and she needed "to know what is being said to [the child] at all times." The time-sharing supervisor did not explain why she believed that she needed to know everything the Mother said to her daughter or why it would be detrimental to the child to speak Spanish with her Mother.
The Father also presented no evidence that speaking Spanish with the Mother would be detrimental to the child. Hence, there was simply no evidentiary basis for the trial court's ruling restricting the Mother's use of her native language even if such a restriction had been requested, and therefore the ruling constitutes an abuse of discretion.
In this appeal and at oral argument, the Father argues that this ruling was necessary to prevent the Mother from alienating the child from her Father by speaking Spanish, which the Father does not speak or understand. However, while the Father might like to sever his ties with the Mother, he has no right to sever his child's ties with either her Mother or the child's own Spanish heritage. The Mother spoke Spanish when the parties were married, and she spoke to the child in Spanish until the ex parte order forbade it. We can see no legal reason to continue this xenophobic language restriction at this point.
If on remand the trial court can identify an evidentiary basis for a legitimate concern that the Mother may be saying inappropriate things to her daughter in Spanish, then the remedy would be for the court to ensure that the time-sharing supervisor speaks and understands Spanish—not to prohibit the Mother from speaking her native language with her daughter.
Judge Wallace's concurrence elaborates on this (some paragraph breaks added):
The order under review provides, in pertinent part, as follows: "Under no circumstances shall the Mother speak Spanish to the child." Our record does not reflect the level of the child's fluency in Spanish. Presumably, the child's ability to speak the Mother's native tongue has deteriorated during the several years that the trial court's "NO SPANISH!" order has been in effect…. The prohibition against speaking Spanish improperly tends to isolate the child from the Mother and her family and impermissibly violates the Mother's basic rights under the federal and Florida constitutions….
The Mother is a native of Venezuela. She speaks English fluently, but Spanish is her native tongue. The Father knew these facts about the Mother when he married and had a child with her. The Father cannot be surprised or complain that the Mother may—from time to time—choose to speak with her daughter in Spanish. Most parents would be pleased to have their child acquire a second language. This should be particularly true for the Spanish language in Florida, where approximately twenty per cent of the population speaks Spanish.
As Judge Villanti properly points out, the trial court's prohibition on the Mother's ability to speak to her child in Spanish has an adverse effect on the child's ties to her mother and the child's Hispanic heritage. But the adverse impact of the order is even broader. Although the Mother is fluent in English, the members of her extended family may not speak English at all—or, at least not as fluently as the Mother.
The trial court's interference with the child's ability to learn to speak Spanish from the Mother will make it difficult for her to communicate with her maternal grandparents, aunts and uncles, cousins, and their friends to the extent that these persons are not fluent in English. Neither the Father nor the trial court can properly cut the child off from meaningful contact with her maternal relatives by prohibiting the Mother from speaking to the child in Spanish.
The trial court's order also violates the Mother's most basic rights. More than ninety years ago, the United States Supreme Court declared that the agents of the state may not tell parents what languages they may teach their children. Meyer v. Nebraska, 262 U.S. 390, 401 (1923) ("[T]he individual has certain rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue."). Here, the trial court's order improperly infringes on the Mother's constitutional right to determine the language or languages about which her child may receive instruction.
In addition, the Florida Constitution guarantees its citizens the right of privacy. In this regard, Article I, section 23 provides, in pertinent part, as follows: "Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein." Undoubtedly, the sphere of private life in which one must be let alone, free from governmental intrusion, includes the right to speak with one's child in the language of one's choosing and not to have that choice dictated by the agents of the state. See Kirton v. Fields, 997 So.2d 349, 352 (Fla.2008) ("Parental authority over decisions involving their minor children derives from the liberty interest contained in the Fourteenth Amendment to the United States Constitution and the guarantee of privacy in article I, section 23 of the Florida Constitution.").
Under section 61.13(2)(c), Florida Statutes (2012), the trial court has broad authority to determine all matters relating to parenting and time-sharing of minor children in accordance with the best interests of the child. However, the trial court's authority is not so broad that it extends to controlling what language or languages a parent may speak with his or her child.
I think this is quite correct. For more on parent-child speech and child custody speech restrictions, see this article, which cites lots of other speech restrictions that courts have imposed—including restrictions on expressing particular viewpoints, or including decisions denying a parent custody because they think the parent will teach the child bad ideas.