Court Orders Mother Not to Tell Daughter That Father Had Expressed Sexual Interest in Stepdaughter

The appellate court reversed, though without reaching the First Amendment question.

|The Volokh Conspiracy |

In J.A.C. v. M.J.C., 2019 WL 2028727 (Pa. Super. Ct. May 8), a court gave the mother [J.A.C] having sole physical custody of daughter K.C. (age 14) and gave her primary physical custody of daughter M.C. (age 11) but allowed father [M.J.C.] some unsupervised visitation time. One key fact from the proceedings was that:

Prior to these proceedings, the parties resided together with the Children and with Mother's daughter from a previous relationship, R.K. The record indicates that, in January 2017, Father made statements of a sexual nature to [stepdaughter R.K.], who was seventeen years old at the time. The exact substance of Father's statements does not appear in the certified record, but Mother testified that he told [stepdaughter] that he "had a crush on her," that he "wanted to date her," and that he and Mother "hadn't had sex for so many months." [Stepdaughter] relayed these statements to Mother, resulting in the parties' separation. [Footnote: Father admitted during the custody proceedings that he made an "improper statement" to [stepdaughter] on "January 7th to 8th, 2017." He reported to his counselor that he told [stepdaughter] "he had a crush on her."]

Mother had "informed K.C. of 'some … but not all' of Father's statements to [stepdaughter], because K.C. was becoming agitated and withdrawn and 'was really needing some answers.'" (Father agreed that he shouldn't has visitation with K.C., at least now.) But, according to Mother, "M.C. remains oblivious to Father's statements and wants to continue spending time with him," though Mother thought that any such visitation had to be supervsised:

Mother insisted that the risk Father poses to M.C. would increase as she reaches her teen years, as [stepdaughter] was a teenager when Father made his statements toward her, and that his contact with M.C. should continue to be supervised. She added, 'He saw [[stepdaughter]] as his own. He even said that he loved her as his own. I don't believe he would be any different with the other two.'" [Footnote: After the incident with [stepdaughter], Mother learned from Father's ex-wife that he had exposed himself to his fifteen-year-old sister-in-law decades ago during his previous marriage. Mother stressed that Father's sister-in-law was also a teenager at the time of that incident.]

The trial court, after initially ordering that Father would have only supervised visitation with K.C., then switched that to unsupervised visitation, and

directed that Mother "shall not relay, or cause to have relayed, any information to [M.C.] regarding the facts and circumstances of Father's inappropriate communications with [M.C.'s] half-sister [[stepdaughter]], absent Father's consent or further order of court….

The court reasoned that informing M.C. of these statements would cause her emotional harm. It explained that K.C. is in counseling to address "problems created by hearing of Father's statements[.]" It added that the provision did not make Mother responsible for the conduct of third parties….

The appellate court reversed, concluding that the trial court had not properly justified its decision as to custody. But the court also focused on the restriction on the mother's speech:

Upon review, the record does not support the trial court's determination that it would be in M.C.'s best interest to prohibit Mother from informing her of Father's statements to [stepdaughter]. While the court found that learning of Father's statements would be harmful to M.C., the court based this conclusion solely on the fact that K.C. does not want to see Father and attends counseling. The court heard no testimony from M.C.'s counselor, or from any other individual qualified to opine on if, when, or how, M.C. should learn of these statements, or what harm she might experience as a result. To the extent the record does address these issues, Mother testified that she received advice from mental health professionals both supporting and opposing the idea of informing M.C. of Father's statements, and that she had discussed the matter with M.C.'s counselor.

Therefore, the court's conclusion in this regard was speculative. Absent a more developed record on these issues, including the presentation of expert testimony, the court abused its discretion. [Footnote: We therefore need not reach the merits of Mother's First Amendment challenge.] …

If you're interested in such First Amendment questions, you might enjoy my Parent-Child Speech and Child Custody Speech Restrictions article.

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  1. Sounds like an application of evidence law. The court applied the same reasoning as FRE 403.

  2. FRE 702 (applicable in most state courts) in part and simply put is: Beyond education and experience (which are not enough) an expert must have factual support for factual assertions. Pa. has a watered down version. In any event more nonsense gets into evidence via “expert” testimony then can be imagined, or so my experience indicates.

    This case appears to be yet another where a court is holding common sense in abeyance pending “expert” testimony.

  3. I wonder if M.C. (or any other close friend or relative), is a Volokh Conspiracy reader.

    Seems like the info is readily available and can easily be provided to M.C.

  4. A court ordering a person to not tell someone about a true risk that someone that is in an unsupervised position of authority over them poses is just wrong.

    Given the balance of risks here, the court is wrong to give the father unsupervised visitation at all. But to say that the mother is ALSO required to cover-up the potential risk that the father poses???

    1. It’s worth noting that women heading into custody trials are commonly advised to make spurious accusations of sexual impropriety against their children’s father. Plenty of them take that advice.

      With that, the father in this case claims he only told the teenage stepdaughter that he had a crush on her (bad by itself, but not the same as making a pass) and the source for the older accusation appears to be …his previous ex-wife. Maybe it’s all true, but the court has to balance what are basically unsubstantiated allegations (in a venue where those are popular) against his parental relationship with his child. That the court chose to do this by banning the mother from telling the younger daughter about the allegations against the father suggests to me that the court may have wondered whether there was any fire behind the smoke.

      1. “Commonly advised” by whom?
        Define “plenty”.
        While you’re at it maybe tell us where you got your JD, and how many divorce clients you’ve represented in the last 10 years.

        1. You’re right, I’m making it all up. I haven’t been through a custody trial, spoken with multiple family law attorneys or lurked in any online forums to get a sense of what I was, or could potentially be, up against. No lawyer has ever given their client unethical advice, no client has ever chosen a strategy advocated by their buddies who read some blog posts or sold their attorney a laughably false story about the other party. It’s all entirely by the book, just-the-facts-ma’am, all clients are molded into honest witnesses on the stand by their lawyers, and every decision is entirely free of bias, incompetence and bad days. It’s hard to even see why we might have a presumption of innocence for the accused. Dead white males, amiright?

          1. Right, and they don’t advise women planning a divorce to clean out the joint savings, either. It just happens over and over by coincidence.

        2. “Commonly advised” by whom?”

          Lawyer: If you can truthfully testify to X, you get [good outcome]. Otherwise you get [bad outcome].
          Client: X, X, and more X.

          “Define “plenty”.”
          Pronoun meaning “lots.” “There are plenty of people willing to lie to get a good outcome.”

          1. Of course, Welker is correct that the guy’s admission gives credibility to the accusation.

      2. I think the fact that he told his step-daughter that he had a crush on her shows that he acts in an extremely inappropriately manner and, by itself, gives enhanced credibility to earlier accusations by yes, his ex-wife. (Whom I gather, you would have us presume to be lying, even absent any particular evidence to that effect. Because, hey, that is just what women do.)

        But I have to ask you. How many children have to be molested before we stop giving some dude the benefit of the doubt based on stereotyped concerns about women as liars in family court (with, I suppose, the presumption that men tend to tell the truth?) And, not only that, to restrict the liberty of the mother to speak in such a situation?

        Is the problem of lying in court real? Of course it is. But the presumption that women are more likely to lie than men seems to be based on .your own stereotypical thinking.

        1. the presumption that women are more likely to lie than men

          I am not obligated to provide book-length disclaimers before addressing the facts of the instant case. We’re talking about a woman accusing a man of something. It is your First Amendment right to play the gender card, but if you don’t understand why we give people the benefit of the doubt against unsubstantiated accusations by interested parties, then I’d like to know where you got your JD.

          1. This loser admitted he had made inappropriate statements to his underage stepdaughter and had told her he ‘had a crush’ on her. Reaching a conclusion of ‘unsubstantiated’ from that evidence seems silly.

            1. She was 17 in a state where the age of consent was 16. That is, definitionally, not under age. The age of consent is literally the age referred to in “under age”.

              So you’ve miraculously found the one thing we know for a fact didn’t happen to accuse him of.

              1. A 17-year-old is a minor. This minor appears to be his stepdaughter.

                (The Pennsylvania standard for statutory sexual assault apparently is 16; the Pennsylvania standard for corruption of a minor appears to be 18. I do not know that a relationship with a stepdaughter constitutes incest but I expect it would. I believe incest is a crime, likely a felony.)

                Do you expect your line of reasoning to be accepted as reasonable, let alone persuasive, by mainstream audiences?

                1. ” I do not know that a relationship with a stepdaughter constitutes incest but I expect it would.”

                  It does, assuming that it’s a sexual relationship. Merely chatting her up wouldn’t qualify, so long as it didn’t go further than that until she was 18. And if you’d accused him of acting improperly in light her status as step child, I’d not have quibbled.

                  Like I sad, you managed to home in on the one accusation that literally was NOT true. I thought that was worth noting.

                2. “(The Pennsylvania standard for statutory sexual assault apparently is 16; the Pennsylvania standard for corruption of a minor appears to be 18. I do not know that a relationship with a stepdaughter constitutes incest but I expect it would. I believe incest is a crime, likely a felony.)”

                  Both corruption of a minor and incest require more than talking to the victim.

          2. If women and men have an equal probability of lying, then there is no more reason to assume the woman is lying than the man is lying. That one person is making an assertion while another denies that assertion does not change the calculus. In that case, we know that either there is a misunderstanding of some sort or one party (or both) is (or are) lying. In the case where exactly one party is lying, absent more information, they have an equal probability.

            I think it is disturbing that you apparently don’t think that this guy confessing to his 17-year old step-daughter that he has a crush on here is not a major red flag. Instead, you think we just go with the presumption that the women (or is it the accuser, regardless of gender?) is lying. But this is majorly deviant behavior already.

            1. “I think it is disturbing that you apparently don’t think that this guy confessing to his 17-year old step-daughter that he has a crush on here is not a major red flag.”

              A major red flag for… what, exactly?

      3. Even if I were to accept that premise, it would still be all the reason more to make sure that the daughter is aware of all the information so she can make an informed decision.

        1. Why is it vital to inform daughter that father has a crush on a woman who is not her mother?

      4. “the father in this case claims he only told the teenage stepdaughter that he had a crush on her (bad by itself, but not the same as making a pass)”

        Not the same?

        1. “Not the same?”

          In the sense of being different things.

    2. “A court ordering a person to not tell someone about a true risk that someone that is in an unsupervised position of authority over them poses is just wrong”

      Literally everyone you know is a true risk to you, at all times, unless you happen to know someone in a permanent vegetative state.

      1. Might want to consider moving to a better neighborhood.

        1. If it still has people in it, they’re all a true risk to you.

          1. You really need help.

            1. In case you haven’t noticed, James Pollock’s main commenting technique is to say something that’s literally true but highly misleading in context, then to tell the people who disagree with them that they’re really stupid. (Sometimes he doesn’t nail the “literally true” part, but nobody’s perfect.) I’m not totally sure why he does it – it’s tedious enough to read his comments so I can’t imagine how dull it must be to write them – but it’s harmless enough. Just try to ignore him.

              1. ” it’s tedious enough to read his comments”

                If you aren’t entertained by comments I write, why do you read them?

                1. … because it sounds a bit… wait for it… stupid to do so, under those circumstances.

  5. Isn’t Kirkland from Erie PA?

  6. “Mother and Father are married but separated.”

    Oh, I had thought this was one of those no-fault divorce cases.

    I wonder why they didn’t divorce?

    1. Maybe they live in one of those states that makes you separate before beginning divorce proceedings.

      1. Some people don’t want to divorce due to religious beliefs. Legal separation ends the marital community without resulting in a divorce. Another common reason is to allow one spouse to remain on the other’s health insurance or other employer/government-provided benefits. Again, the martial community terminates but you’re still eligible for the benefits.

  7. The facts here, as in many cases, are messy, and it appears that the trial court botched it.

    The appellate court reversed, though without reaching the First Amendment question.

    Good thing. I am having a hard time wrapping my head around how the First Amendment would change the analysis. These kinds of situations are highly sensitive and fraught with compelling interests on both sides. I am having a hard time imagining a court saying, “It is the best interests of the children that the mother keep her mouth shut, but the First Amendment dictates that I rule otherwise.”

    1. I think the First Amendment often dictates exactly that when it comes to court orders prohibiting someone from speaking.

      1. Yes, often. Note that the 1st amendment explicitly forbids CONGRESS to limit speech.

  8. So, the step daughter, who he actually made the remark to, was 17; Age of consent in Pennsylvania is 16. And he didn’t act on it. Just as well, it would have been several months short of being legally incest. Yeah, I guess “inappropriate” covers it.

    Just to clarify the situation, all the initials were getting me confused.

    I agree the mother shouldn’t be forbidden from telling the other children. OTOH, plenty of things that aren’t properly forbidden shouldn’t be done anyway.

    1. I very much doubt many jurisdictions call that “incest”. It is “Sexual Misconduct with a Minor”, in my state though, until she’s 18.
      (The crime raises the age of consent when the perp is a guardian or a teacher, etc)

      1. I actually looked it up on a whim: Pennsylvania law defines having sex with a stepchild under 18 as “incest”.

        1. But if mom and step-dad divorce… she isn’t a stepchild any longer.

  9. I hope these children overcome the substandard conditions of their childhood. They deserve better than the described circumstances.

    1. Nah, they should have to pick sides, just like random strangers on the Internet have to.

  10. The court is a cock-blocker – seems good to me.

  11. No “order” is going to bar any conversation between a Mother and Daughter, making this a subject for “expert” testimony . . . two absurd rulings in a row!

  12. […] Click here to view original story: Court Orders Mother Not to Tell Daughter That Father Had Expresse… […]

  13. I think attempting to apply legal principles designed for strangers to the interactions of family members is fraught with potential for difficulty.

    This case strikes me as highly fact-specific. And there is just so much we don’t know.

    I could imagine a scenario where, if the crush resulted in making his behavior around her awkward enough, letting her know the source of the difficulty in an apologetic tone as compassionate as he can achieve under the circumstances, might be the best available course of action in a world where every possible course is inappropriate. The awkward step father with a crush who warns his step daughter that there is a problem preventing them from relating as smoothly as they should, and alerts her that she needs to be somewhat careful in their interactions, is still showing more concern for her safety and well-being, and his actions will result in an outcome that is better for her, than the smooth step father with a crush who, being better able to conceal his emotions, is also better able to maneuver her, unsuspectingly, into his clutches.

    It is by no means clear to me that telling people the truth, is always the worst thing for them. It might sometimes be the best policy.

    Under ideal circumstances, with perfect self control, nobody should do it. But our circumstances are only partially ideal. And so, sometimes, is our self-control. What are the people with only partial self-control to do? Traditional law, in its mercy, had ways of enabling them to still live a life at peace with others that modernity, in its quest for justice, increasingly rejects.

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