The Volokh Conspiracy
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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"informed K.C. of 'some … but not all' of Father's statements to [stepdaughter], because K.C. was becoming agitated and withdrawn and 'was really needing some answers.'"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.