The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Powell v. Knoepfler-Powell, decided last week by Judge David Bernhard of the Virginia Circuit Court (Fairfax County):
The Court … holds [that a divorce settlement agreement] term that the parties are to exercise "great care prior to introducing" their "boyfriends or girlfriends with whom they may have a romantic relationship" to their child, is void as against public policy and unenforceable. The clause is unduly vague and calls upon the Court to unreasonably limit the freedom of association and speech of the parties interacting with their child ….
The Court is part of government and as such, is restricted from unduly interfering with fundamental rights. The Virginia Code calls upon judges presiding in disputed custody and visitation cases to consider the best interests of subject children in application of a number of listed factors "for purposes of determining custody or visitation arrangements," which may empower the Court to a limited extent to regulate associations and speech when harmful to the child…. [But t]he Court must tread lightly, if at all, in imposing prior restraint on the associations and speech of a parent who has given no cause to the Court to conclude that she will act in any way harmful to the parties' child. In the context of this Court imposing an order restricting parental freedom of association and speech, it would thus be an abuse of discretion by allusion to the authorities herein cited at a minimum not to have a reasonable and equitable basis for so doing….
This provision, if again incorporated into this Court's order resolving the instant dispute, is equivalent to an injunction punishable upon transgression by the judicial contempt power. Previous agreement by the parties to a contractual term alone is not dispositive as to whether such provision is nevertheless void as against public policy.
"Whatever tends to injustice or oppression, restraint of liberty, … and natural or legal right;… when made the object of a contract, is against public policy and therefore void and not susceptible of enforcement." The Court may further not enter an order that restricts speech that is "'so broad, so unreasonable, and so open ended' that the manner in which he [or she] 'is supposed to comply with this order is difficult to know."'
A first principle of justice is that an injunction not be so vague as to put the whole conduct of a defendant at the peril of a summons for contempt. Instead, courts must navigate carefully between the extremes of issuing a decree that is so vague and overreaching that all actions by the defendant might potentially violate the decree and a decree that is so limited as to be ineffective in preventing the harm contemplated ….
A basic threshold in analysis of the provision in dispute is whether it is so vague as to be unenforceable. "When the terms of a disputed provision are clear and definite, it is axiomatic that they are to be applied according to their ordinary meaning."
The law does not favor declaring contracts void for indefiniteness and uncertainty, and leans against a construction which has that tendency. While courts cannot make contracts for the parties, neither will they permit parties to be released from the obligations which they have assumed if this can be ascertained with reasonable certainty from language used, in the light of all the surrounding circumstances.
However, "[a]n ambiguity exists when language admits of being understood in more than one way or refers to two or more things at the same time." Imposing upon the parties that they exercise "great care prior to introducing" their romantic "boyfriends or girlfriends" to their child, suggests there is to be an uncertain degree of selectivity with whom they may associate in the presence of the child. In the instant case, "great care" to one parent may mean "less care" to another. The restrictive sentence does not further direct what is meant by such terms, leaving them essentially to interpretation arbitrarily by each parent….
For the Court to incorporate in its order that the parties must take "great care prior to introducing" their romantic partners to their child, the Court necessarily must be able to discern what such command means here. It cannot. The restriction respecting the introduction of their romantic partners to the parties' child is hopelessly vague, unenforceable, and shall not be included in the Court's revised custodial order….