The Volokh Conspiracy

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Free Speech

Mother Loses Custody of Daughters Partly Because She Talked to Them About Her Sex Life,

and because she left a sex toy where one of them could find it.


In Jansen v. Jansen, decided Thursday by the Michigan Court of Appeals (Presiding Judge David H. Sawyer and Judges Jane E. Markey and Brock A. Swartzle), the court changed custody of two daughters from the mother to the father, for many reasons. But two of the factors that the court specifically noted as significant struck me as worth noting: the mother's "inappropriate conversations with the children about her sex life" and her negligence in leaving a sex toy where EJ and a friend found it":

The trial court specifically indicated that the following factual grounds established proper cause and a change of circumstances: (1) defendant's inattentiveness to EJ's medical and health needs [EJ had apparently become morbidly obese -EV], (2) defendant's relinquishment of her parenting time to pursue her personal goals, (3) defendant's inappropriate conversations with the children about her sex life, (4) defendant's unacceptable behavior involving wrestling with the children, (5) defendant's negligence in leaving a sex toy where EJ and a friend found it, and (6) defendant's inability to control her anger and interact appropriately with the children as demonstrated by a recorded conversation….

[T]here was evidence that defendant [mother] discussed the parties' sex lives with the children multiple times. She told the children that she had dated a man with "erectile dysfunction," which she deemed appropriate to share with the children. [Elsewhere in the opinion, the court noted that the mother had also discussed the father's sex life. -EV] And defendant {negligently} left a sex toy on her bed that her children discovered. Of note, at the time of the de novo hearing, EJ was only 11 years old and JJ was only 10 years old….

Likewise, the court noted that it counted against the mother:

(1) the sharing of sex life details, (2) making remarks about a date's erectile dysfunction, (3) raising her voice during a conversation with the children about sexuality, (4) leaving the sex toy exposed, (5) allowing the children to be in the presence of a man she was dating who became intoxicated and acted highly inappropriately, (6) physically wrestling with the children after drinking, (7) verbally abusing EJ and defendant's other daughters during the recorded conversation, (8) attempting to manipulate EJ in an effort to convince her that she did not want to move to Plymouth, and (9) commenting to LJ that she would "kick her ass."

The mother "argue[d] that the first four reasons mentioned by the trial court relate directly to sex or sexuality, which suggests that the court attempted to 'substitute its judgment on these highly sensitive and personal issues for that of a parent's.'" But the court of appeals responded that, "Objectively speaking, defendant's actions can reasonably be characterized as troubling given the children's ages."

My view is that talking frankly with one's own children about sex—and taking the view that sex toys don't need to be hidden—is a choice that a court generally shouldn't second-guess, even in the context of a dispute between parents. (Talking about the ex-spouse's sex life might be a different matter, because of the ex-spouse's interests in privacy and in his relationship with the children, but the court didn't seem to focus on that.) Maybe we should be more frank with our children about such matters, and to treat them as commonplace facets of life rather than taboos. Maybe we should be less frank. No-one really knows for sure, it seems to me. And, in part because of that, coupled with what should be a strong presumption in favor of parental choice and parental free speech rights, it seems to me that each parent should make that choice without being penalized for it.

It thus seems to me that the court should have relied entirely on the other factors, and excluded these two items, and especially her speech. (For more on that, see my Parent-Child Speech and Child Custody Speech Restrictions article.) But in any event, I thought the decision was worth passing along.