Massachusetts Appeals Court Strikes Down Child Custody Speech Restriction

From Sanavage v. Chavis, decided Tuesday by Justices Eric Neyman, Vickie Henry & Kenneth Desmond:

We agree that a number of provisions [of the child custody judgment, challenged by mother of a 10-year-old child,] placed an impermissible restraint on the mother's speech and interfered in her child rearing. In addition, the judge failed to provide specific findings to justify a compelling State interest in placing such restrictions on the mother, or to explain why these limitations were necessary to protect the compelling interest asserted as justification for such restraint. We conclude, therefore, that the disputed provisions of the judgment contained in numbered paragraphs two and three infringe on the mother's constitutional rights and must be vacated….

Prior restraints are "extraordinary remedies," and are "permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm." Shak v. Shak (2020). Accordingly, a prior restraint will not be upheld unless it is "justified by a compelling State interest to protect against a serious threat of harm," and the limitation on speech is "no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint." In addition, an "important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say.'" … [The s]tate "may not compel affirmance of a belief with which the speaker disagrees" ….

Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State's interests in the restraints imposed; instead he simply stated that the orders were made in "the best interest of the … child," which alone is not enough to justify a prior restraint on speech. Absent from this record is any evidence demonstrating that any "harm expected from the [mother's] unrestrained speech is grave," or likely to cause harm to the child, or that there was no less restrictive alternative to mitigate any harm….

Thus, we shall remand the disputed portions of the judgment pertaining to the coparenting terms (paragraph numbered two) and communications between the parties (paragraph numbered three) so that the judge may modify those terms that infringe on the mother's First Amendment and Fourteenth Amendment rights, or make further specific findings justifying the restrictions imposed by the judgment….

In numbered paragraph two (coparenting terms) of the amended judgment, the bulleted subparagraphs are vacated, with the exception of the fifth, eighteenth, twenty-third, twenty-fifth through thirty-first, and thirty-third subparagraphs; and in numbered paragraph three (communication), the bulleted subparagraphs are vacated, with the exception of the first through second, fourth, and sixth through seventh subparagraphs, and the matter is remanded for further proceedings consistent with this memorandum and order. Numbered paragraph nine (education) of the amended judgment is vacated in its entirety. Numbered paragraph ten (exchange location) shall be modified by striking the last sentence of the third paragraph, and striking the fourth paragraph in its entirety. The amended judgment is otherwise affirmed as so modified.

But wait: Just what are these unconstitutional orders? The appellate opinion doesn't mention them, but I had my research assistant track down the judgment for me; the struck-down provisions that most focus on speech seemed to be:

Each parent shall encourage the minor child to have an attitude of respect for the other.

Each parent shall identify for all public and private purposes the minor child by their legal names and shall not use any other name for the minor child.

Each parent shall communicate with each other regarding any matter affecting the welfare of the minor child.

The parents are restrained from making any disparaging or negative comments of any type of nature whatsoever to one another by telephone, text or email or to any other third person, to include the child and / or from posting any disparaging comments relative to one another on any form of electronic social media.

The parents shall treat each other with mutual respect and shall foster in the child respect for the other parent.

The parents shall not discuss with the child the nature of any past, present or future legal proceedings.

The parents shall not question the child about the other parent nor allow a third party to do so.

The parents shall at all times insure that any and postings by the minor child on any social media platform shall be age-appropriate, not contain any demeaning or inflammatory depictions or language and shall not contain any language or depictions of a provocative nature.

One interesting portion of paragraph 9 (also struck down as "infring[ing] on the mother's fundamental rights as a parent"): "Each parent, during the time that he or she has custody of the child, shall ensure that the child timely completes all school homework assignments or projects and shall review with the child all completed school homework assignments or projects."

For more on child custody speech restrictions, see here.

Comments

[Soronel Haetir]

Personally, if my parents were using my legal name I knew I was in trouble for something.

[Pavel Petrovich]

A constitutional comuppence on the jews of family court? A limit to the unbridled DISCRETION of jew family court judges to interfere with parent-child bonds just because mom and dad got unmarried? The jews are losing control over the goy and their calves. Oi vey, this will not be unchallenged.....the Jews of the Family Bar association won't stand for it!!!!

If this ruling is upheld, then thousands upon thousands of family court orders just went out the window, state judges need to be completely retrained, the jews need to be expelled from family court.

Of course no one ever applied Troxel v Granville by Sandra to family court, that was a Bar Association conspiracy. Let the skreetching of the jews begin!!!

[Dr. Ed 2]

Hey Pavel, when even someone like me has to DuckDuckGo the term "Oi vey" to find out what it means, I assure you that no genuine antisemite ever would use it.

I don't know why you want to appear antisemetic, but your cover isn't holding....

[Dr. Ed 2]

And for the record, "someone like me" means someone who has a lot of Jewish friends and who routinely uses some Yiddish words (OK, the word "schmuck") with routine frequency and (I argue) correctly. People who reject all things Jewish don't know Yiddish.

It's how a lot of the guys with the OSS got into trouble during WW-II -- they'd hold a cigarette the way that an American would, and not the way that an European would -- hence making it very clear that they were Americans and thus blowing their cover.

Pavel, the knuckle-dragging anti-semite you purport to be doesn't *know* Yiddish and wouldn't use Yiddish words *correctly* even if he used them, which he wouldn't. The latter is like a Jew making jokes about the Holocaust, no matter how offensive they were, it wouldn't occur to someone with a personal relationship to that tragedy to even *think* of such things...

This is (at least now) is a free country and you have the right to be any kind of bigot you desire. I just want to clarify that my point was that I am someone who has Jewish friends but is not a Jew and was commenting from that perspective.

Now as to whatever the h*ll your problem is -- well, this is a free country and you have a right to be a schmuck...

[susancol]

It's rather odd, in the context of divorce and child "custody" (or whatever the current term for it is). When parents behave in ways that predictably inflict psychological harm on their child (whether to hurt the other parent or to punish the child for his/her attachment to the other parent), courts can and have used that fact to justify taking the child away from the miscreant parent. The decisions I read (it's been, thankfully, decades since I had to practice in this area) easily found it was NOT in the best interest of the child to be harmed by being a focus of contention or be used as a weapon, or be alienated from a parent (assuming that parent is not a danger to the child).

Possibly the order being found an infringement of free speech is akin to an impermissible prior restrain on speech, while the taking away custody/primary physical residence/whatever is akin to the permissible punishing of defamatory speech? Or do judges no longer have the discretion to protect children from parents who use them in their war against their ex-partners?

[Dr. Ed 2]

"Each parent shall identify for all public and private purposes the minor child by their legal names and shall not use any other name for the minor child." [emphasis added]

What leaps out at me, in addition to the schizophrenic plural reference to a singular individual, is transgenderism. Or whatever word we are still permitted to use to define the (whatever we are permitted to call it) when one's current sex and gender-specific given name is different from the sex and gender specific name on one's initial birth certificate.

I say "initial" birth certificate because the Commonwealth has become Orwellian enough to issue replacement birth certificates with the new name and new sex(s) on them. Not to mention new high school diplomas and the rest.

My guess is that one parent wanted to "deadname" the child, i.e. use the old name for the child. This is, after all, the Brave New People's Republic of Taxachusetts....

[Dr. Ed 2]

As an aside, with all the male names adopted by women (e.g. "Charlie" & "Lindsey"), I've never understood the rationale for having to changing the name along with the sex.

Personally, I have less trouble believing that a girl can have a boy's name than believing that a boy is a girl. And I told Farcebook to go FireTruck itself when it said I couldn't say that...

[Dr. Ed 2]

Re-reading this, without seeing what I expected to see, led to this interesting footnote:

"The pastor [whom the mother married] has four teenage children from a previous marriage; the child gets along well with his children, referring to them as her brothers and sisters."

A little bit of basic research brought up the fact that the mother is now the "Staff Assistant Case Manager" in the Conduct Office of Fitchburg State University, which is a "state job" -- she's likely getting $60K if not more, along with the full GIC (state) health insurance package and the rest. And while that may not seem like a lot of money to law professors, to a man who was likely working "three part-time [likely minimum wage] jobs" while she wasn't working, it absolutely is.

And then the big issue in the case appeared to be a shift from an 80%/20% custody arrangement to an 60%/40% (actually 58.9% to 41.1%) arrangement. IMHO-IANAL *that* is what the mother was really appealing on, and she lost. But note that he wants midweek custody -- guys with good jobs usually are working midweek and hence seek *weekend* custody....

And as I allude to above, he likely has a criminal record -- most working class Black men do (at least in Massachusetts) and there's a whole bunch of reasons for this, it's quite sad and a discussion far beyond what I wish to type here...

Furthermore, and this is just a hunch, my guess is that the mother picked up her BA post-pregnancy. It's something that I've seen in the White working class way too often -- a woman goes to college after her children are in school, gets fed a dose of "the world should revolve around you" feminism and proceeds to hold her loving-but-struggling spouse in contempt because she now earns more money than he does.

What I've seen over the past 30+ years is that she usually winds up abandoned and alone, but I again digress.

In this case, I probably was wrong on the tranny issue -- although it very much is happening here in the Brave New People's Republic.

Instead, I think that the free speech issue is over what the child will be *taught* -- either that the mother's new husband's children are her brothers & sisters, or that they aren't. The record indicates that the father didn't file a brief, my guess is that he couldn't afford to. It would be interesting to see what he would have said if he could have...

[arpiniant1]

Are not custody agreements just that, legal agreements? Do not corporations and individuals make legal agreements involving such things as 'non disparagement' ? So is this not really an attack on form, rather than an actual free speech case? The agreements enforced by the court were most likely drafted by the lawyers for their parties and then signed off by the court. Did the court really just come up with this on their own?

[Eugene Volokh]

Indeed; the First Amendment analysis in the Shak precedent expressly states that "our ruling does not impact nondisparagement agreements that parties enter into voluntarily." Promises not to speak can often be enforced, including sometimes with injunctions.

But though the court's opinion in this case does mention briefly that "The parties also agreed that neither would disparage the other (or allow a third party to do so) in the child's presence[ and] neither would question the child about the other parent," it appears from oral argument that the agreement was agreed to only for purposes of the temporary order, not the final judgment. One of the judges asked about this very question; and the opinion's lack of reliance on the agreement suggests that the judges indeed viewed the agreement as being only temporary. The permanent order thus had to be justified by something beyond the agreement, and the court concluded it hadn't been adequately justified.

[Dr. Ed 2]

There's also this: "On December 15, 2017, the father's motion for a requested investigation by the probation department for recommendations regarding custody, parenting time, and parental issues was allowed." [emphasis added]

Why was the "probation department" involved and not the Department of Children & Families (DCF) which (a) deals with issues of children's wellbeing, (b) would have jurisdiction of a child under the age of 17(?) regardless of the severity of the criminal offense(s) the child was convicted of and (c) does the background investigations for adoptions, e.g. a lesbian wanting to adopt her wife's biological child to create a status of co-parenting. (I mention the latter because I knew a coworker who did that and had to deal with the awkward interview with a caseworker whom she'd been dealing with on a professional basis (i.e. 51As) for years.

"Probation Department" means something in Massachusetts, and with the criminal issues it's been involved with in the past few years (a Federal corruption/hiring investigation), I don't think that *three* judges would confuse it for DC&F, which has had it's own quite public issues over the past few years. (Welcome to Taxachusetts....)

I'm thinking that, like a third of all Black men, he is on some sort of probation or parole -- it's the only reason why the Probation Department would bother to care who he is, or have the legal jurisdiction to investigate him in the first place.

In other words, *I* could ask the Probation Department to investigate *me*, and upon learning that I had no file because I haven't been convicted of anything, they'd tell me to go away and have a nice day -- if they were being polite. (Actually, my experience in dragging undergraduates down to see them is that they usually are because they appreciate not having to chase you down, but I digress....)

Again, in other words, I'd love to know what is on the father's CORI, and I suspect that is a big part of this -- he doesn't want his daughter being told that her father is a criminal, etc...

It's an interesting free speech issue -- does Parent A* have the right to prevent Parent B* from revealing CORI-protected information to their child? Criminal convictions are confidential in Massachusetts (which is another issue) and there are laws against reveling this information (IMHO unconstitutional laws, but I digress...).

So if Parent B only knows something because of CORI privilege, can Parent A turn around and enforce that privilege?

[Pavel Petrovich]

The reality of family court is judicial discretion, the state empowers the court to do whatever it wants based on 'discretion', the standard of review is that if there was no abuse of discretion, the trial court ruling is not disturbed. The court has discretion to tell the parents what they do around the kids, it is upheld across the country, there are no First Amendment protections in family court, no Fourth, Fifth or Fourteenth, the power of the state court does not flow from the Constitution, it comes from the ancient royal parens patriae powers, which allows it to act as the state father over the kids and the parents. So if the court says you are going to make sure homework is done, that is an order of the court and you will comply.

The analysis of the appellate court will fall, it is inconsistent with parens patriae powers.

[Davy C]

>The parents shall not discuss with the child the nature of any past, present or future legal proceedings.

The judge deserves to be flogged for this. No judge has any business prohibiting anyone from discussing "any past, present or future legal proceedings" with anyone else. (And if the he wanted to limit this to a certain category of proceedings, he shouldn't have phrased it with the widest possible language.)

This court order is part of a legal proceeding, and it directly affects the child. But the parents aren't allowed to tell them about it? That's a violation of the rights of the child AND the parents.

What if one day the child gets in legal trouble? The parents aren't allowed to discuss it with them? Heck, what if the child decides they want to discuss Roe v. Wade? They're 12; serious discussions of legal matters are not impossible.

And furthering my assertion that the judge is incompetent: I know the kid is 12 because the judge forgot to censor the kid's name and DOB in one spot. Now, I'm all for getting rid of the secrecy of family court, but I highly doubt this was intentional.

[Eugene Volokh]

Davy C: Thanks for pointing out the redaction glitch; I've now redacted that reference as well. Just to be clear, the judgment itself, which I got from the court's records, did not redact the child's name or birthdate; I decided to do that myself, as just an editorial judgment on part (not as a matter of legal obligation).