The Volokh Conspiracy

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Volokh Conspiracy

(Possibly lesbian) teenagers, interceding mothers, and restraining orders


An interesting case (Muscato v. Moore (Okla. Ct. Civ. App.), decided Nov. 17 but just recently noted in the Westlaw Bulletin)—the legal question is whether a teenager's parent can get a restraining order to stop an adult from talking to the teen; but a similar issue arises if the parent sought a similar order against another teenager, as in Brekke v. Wills (Cal. Ct. App. 2005).

As you read this, you might want to ask: How much should it matter that the restraining order seemed aimed at preventing possible sexual conduct by minors? Should it matter whether the sexual conduct is a crime? (Oklahoma law seems to bar rape prosecutions for sex between 14-year-olds, though I'm not positive whether some other criminal charges, such as for lewd acts, might be permissible.)

What if there was no sexual dimension to this, but a mother thought her daughter's friend was a bad influence? What if she thought the friend was a bad political or religious influence? Should a restraining order in such a nonsexual case be available against the friend, the friend's mother (if the friend's mother was trying to rekindle the girls' friendship), both, or neither?

In any event, here's an excerpt from the Oklahoma court's opinion:

[Sherry] Muscato's daughter and [ShawnMarie] Moore's daughter were best friends and "went out" in eighth grade when they were "going through a phase." Muscato found what she believed were inappropriate and sexually explicit text messages between Moore, Moore's daughter, and Muscato's daughter on her daughter's cell phone. The text messages allegedly contained information that Moore's daughter was sexually active and that Moore had purchased a sex toy [vibrator] for her daughter. At the time, Muscato's daughter was fourteen-years-old.

Muscato told her daughter that she did not want her spending time with Moore's daughter for a while. Muscato also told Moore that she wanted the girls to end their friendship and that she wanted Moore and Moore's daughter to discontinue contact with Muscato's daughter.

Muscato alleges that Moore ignored her request and continued to contact Muscato's daughter and to encourage contact between the girls. In a text message, Moore told Muscato's daughter to keep all communications between them a secret from her mother. Additionally, Moore arrived at a church where Muscato's daughter was volunteering in an attempt to communicate with her and reunite the girls.

After the church incident, Muscato filed a police report and a Petition for a Protective Order based on stalking on behalf of her daughter. The trial court granted an emergency protective order April 9, 2013. A hearing on a permanent protective order was held April 20, 2013. The trial court granted a permanent protective order against Moore for four years.

Title 22, § 60.2 authorized Muscato to file a petition for a protective order on behalf of her fourteen year-old daughter. The petition alleged Moore was stalking Muscato's daughter. One definition of stalking in the Protection from Domestic Abuse Act is:

[T]he willful, malicious, and repeated following or harassment of a person by an adult, emancipated minor, or minor thirteen [13] years of age or older, in a manner that would cause a reasonable person to feel frightened, intimidated, threatened, harassed, or molested and actually causes the person being followed or harassed to feel terrorized, frightened, intimidated, threatened, harassed or molested.

Moore argues that a protective order based on stalking is not supported by the evidence. Moore argues that because Muscato's daughter testified that she did not feel intimidated, threatened, frightened, or harassed by Moore, the trial court abused its discretion by entering a permanent protective order against Moore.

Muscato told Moore that she wanted the girls to end their friendship and that she wanted Moore and Moore's daughter to discontinue contact with her daughter. Although there is no record of the trial court proceedings prior to the hearing on the Motion to Vacate, Moore does not dispute in her appellate brief that she sent text messages to Muscato's daughter and went to the church to find Muscato's daughter after receiving Muscato's admonishment. Muscato's daughter was 14 years old at the time.

A 14-year-old girl might not consider Moore's words and actions to be frightening, intimidating, threatening, or harassing. However, Muscato perceived a threat to her daughter. Furthermore, as a minor, even if Muscato's daughter had felt frightened, intimidated, threatened, or harassed, she did not have the capacity to seek relief under the Protection from Domestic Abuse Act.

There is also evidence to support the second definition of stalking:

Stalking also means a course of conduct composed of a series of two or more separate acts over a period of time, however short, evidencing a continuity of purpose or unconsented contact with a person that is initiated or continued without the consent of the individual or in disregard of the expressed desire of the individual that the contact be avoided or discontinued.

Muscato expressed her desire that Moore discontinue contact with Muscato's daughter. Moore disregarded Muscato's expressed desire that the contact be discontinued. There were two separate acts of unconsented contact after Muscato requested that Moore discontinue contacting Muscato's daughter: (1) Moore continued to send Muscato's daughter telephone text messages, including one instructing Muscato's daughter to keep their communications secret from Muscato; and (2) Moore went to the church to find and contact Muscato's daughter.

Moore suggests that Muscato's daughter consented to the contact and that only Muscato opposed the contact. As the parent and sole custodian of her minor child, Muscato had the right to decide with whom her daughter associated and who could contact her daughter.

[Footnote: Although this is not a situation where the state seeks to deprive a parent of his or her right to parent, we cannot ignore that "[a] parent's right to make decisions as to care, custody, companionship, and management of his or her children is a fundamental right protected by the federal and state constitutions." See Troxel v. Granville, 530 U.S. 57, 66. The court presumes a fit parent makes decisions in the best interests of his or her children.]

Muscato expressed her desire that Moore discontinue contact with her daughter. Therefore, Moore subsequently contacting Muscato's daughter through text messages and by going to the church is a course of conduct composed of a series of two or more separate acts over a period of time evidencing unconsented contact with a minor that is in disregard of the expressed desire of the parent that contact be discontinued. We affirm the trial court's denial of Moore's Motion to Vacate the four-year protective order.