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Free Speech

Appellate Court Vacates Order Aimed at Stopping Child from Calling Stepfather "Dad"


From Rogowski v. Kirven, decided last week by the Pennsylvania Superior Court, in an opinion by Judge Judith Ference Olson, joined by Judges Mary Jane Bowes and Mary P. Murray:

[T]he trial court … placed the following restriction on the Child's speech:

The parties shall not encourage the Child to refer to anyone other than the parties as Mother, Mom, Father, Dad, [et cetera.] In the event the Child refers to a party's spouse or significant other in such a way, that party shall correct the Child.

… [W]e find this restriction to be a content-based restriction because the purpose of the restriction was to limit the message that the Child conveyed through use of the terms "Mom" or "Dad" to denote a biological, familial relationship with the person rather than a non-biological, familial relationship as exists in the case of a step-parent. Therefore, this restriction is subject to the strict scrutiny standard.

The trial court discussed the need to impose a restriction on the Child's speech within the context of its "best interest of the child" analysis as follows:

Father testified that the Child is calling Stepfather "Dad" or "Daddy," a term that applied only to Father during the Child's first five years of life—years during which Father testified he was the Child's "stay-at-home Dad."

Mother testified that it is "unreasonable" to expect the Child, at age 8, to call Stepfather by a name different from [w]hat her two younger half-siblings will use in the future. She said that [the Child's half-brother], at 18 months, is "just getting the hang" of saying "Da" with reference to Stepfather. Mother said she introduced [Stepfather] to the Child in May 2018, and that she has never told the Child to call him "Dad" or ["]Daddy." [Mother] is disinclined to have the Child call Stepfather by some other name as she hopes in the future the three children will refer to him uniformly.

Mother's desire that the Child refer to someone other than Father as "Dad" or "Daddy" is concerning. It is unreasonable for Mother to expect that Father share the title "Dad" with Stepfather, particularly in light of evidence that Mother has acted in ways to diminish Father's role in the Child's life, such as leaving him in the dark regarding a baptism and chiropractic appointments.

Mother testified that Father has failed to support Stepfather's role. Until recently, she said Father referred to Stepfather as "the other man" or Mother's "significant other."

Several months ago, Father decided to take the Child to the emergency room due to symptoms including swelling of the hands and feet. The parents discussed the situation when the Child came into Father's custody. Before Father notified Mother of his decision to go to the [emergency room], Mother received an audio message from the Child stating[,] "Please don't tell Dad that I told you. I have to go to the hospital." There is a conspiratorial and anxious tone in the Child's voice.

The [trial] court is concerned that the parents' ill[-]will and lack of trust is cultivating unhealthy bonds between each parent and the Child. Such bonds may result when Child keeps secrets and withholds information from the other parent.

The trial court, in imposing a restriction on the Child's speech, did so in an attempt to further Pennsylvania's interest in protecting the Child's mental and psychological well-being by maintaining and strengthening the strained relationship between Child and Father. We cannot, however, agree that the restrictions the trial court placed on the Child's use of the terms "Mom," "Dad," of a derivative thereof, were narrowly tailored to further Pennsylvania's compelling interest absent a finding by the trial court that the use of the term "Dad" or "Daddy" to refer to Stepfather caused harm or will cause harm to the Child.

Indeed, the text of the trial court's order suggests that the trial court was concerned that the parents' mutual ill-will and mistrust may have cultivated unhealthy bonds between the parents and the Child, not that the terms the Child used to refer to her parents and stepparents were central to that process. Without a finding that the Child's use of the terms "Dad" and "Daddy" to refer to Stepfather posed a tangible risk of harm to the Child, we are constrained to vacate the content-based restriction imposed by the trial court….

Without a causal link between the expression at issue and a risk of harm to the Child, we are inclined to follow the teachings of our prior decisions…. [A] parent-child relationship should be defined by, and developed according to, the personalities and character of a child and each parent, unhampered, to the extent possible, by restrictions imposed by the court. In other words, how, and by what term, a child refers to a significant person in his or her life should be set by the personalities and characters of the child and that person, and the term should not be used as a weapon by others to deter the child's relationship with that person. As such, we vacate that portion of the … [order] concerning the Child's use of the terms "Mom" and "Dad," or derivatives thereof, when referring to person's other than the biological parents….

Congratulations to Katherine L. Vollen, who represents the mother.