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Can Parent's Making Porn Lead to Loss or Reduction of Child Custody?

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From yesterday's decision in Killebrew v. Gardner (opinion by Judge James Gardner Colins, joined by Judges Judith Ference Olson and Victor P. Stabile):

Father and Mother were married for a period of less than two years and had separated prior to Child's birth. On March 6, 2014, Father filed an initial custody complaint seeking shared legal and physical custody. On April 7, 2014, the trial court entered an order providing that the parties would share legal custody and Father would have partial physical custody on Tuesday and Thursday evenings and every other Sunday. Father's custody periods were expanded in orders dated October 17, 2014, and January 29, 2015, allowing Father to have Child overnight every other Thursday and one Saturday night per month. Father's partial custody was expanded again on December 9, 2015, to alternating two or four nights per week, and this allocation of custody continued, in substantially similar form, through a series of orders entered prior to 2020.

On January 27, 2020, Mother filed a petition for modification of custody order, alleging that Child was involved in two automobile crashes while being driven by Father's wife  …. At a February 25, 2020 hearing on this petition before a hearing officer, Father presented evidence that Mother had posted sexually explicit photographs of herself on the "OnlyFans" website {"a subscription-based website that allows content creators to share sexually explicit materials with their fans, after engaging in direct messages and other interactions, for a fee"}. Father also informed the hearing officer that he had made a ChildLine [suspected child abuse] report concerning Mother's behavior.

On February 26, 2020, the trial court issued an order, upon the recommendation of the hearing officer, providing that Mother would have no contact with Child pending a scheduled forensic interview with Child. In the event that the forensic interview revealed that Child had no awareness of Mother's OnlyFans activity, the order authorized supervised telephone communication with Mother and Child but no in-person contact pending a future court order. Alternatively, if Child did indicate awareness of such activity, then Mother would be permitted no contact with Child at all. The order further provided that Mother was required to delete her OnlyFans account and submit to a psychological evaluation and follow any recommendations provided to her in that evaluation.

Mother filed a petition for emergency hearing on July 1, 2020, alleging that the Delaware County Children and Youth Services ("CYS") investigation had showed no sign of child abuse or that Child was aware of Mother's OnlyFans activity and that Mother had otherwise fully complied with the requirements of the February 26, 2020 order. This petition was denied on July 22, 2020. On August 20, 2020, Father and Mother appeared at a status conference before the hearing officer, which resulted in an August 25, 2020 order granting Mother partial physical custody of Child every other weekend from Friday to Sunday evening, with Father retaining sole legal custody.

On November 16, 2020, Mother filed a modification petition seeking shared legal and physical custody of Child. In a March 30, 2021 order, upon consideration of Mother's request, the trial court extended Mother's period of partial physical custody to a period spanning Friday evening to Tuesday morning, on alternate weekends, but legal custody of Child continued to reside with Father.

On August 24, 2021, Mother filed the modification petition at issue here, again seeking shared legal and physical custody of Child. The matter ultimately proceeded to trial on April 26, 2023…. On June 27, 2023, the trial court issued the custody order under appeal, which provides that Mother and Father share legal and physical custody of Child….

[T]he court determined that [statutory custody] factor 9, which party is more likely to maintain a loving, stable, consistent, and nurturing relationship with the child, was … neutral. Finally, in its consideration of factor 16, any other relevant factor, the court found that there was no evidence that Mother's OnlyFans activity caused Child any harm and that the court was not permitted to otherwise "judge a parent's private adult behavior outside the presence of the child" under its statutory authority to assess the best interests of the child when fashioning a custody award….

The paramount concern in any child custody case is the best interests of the child. "The best-interests standard, decided on a case-by-case basis, considers all factors which legitimately have an effect upon the child's physical, intellectual, moral, and spiritual well-being." … "In a dispute between parents, each parent shares the burden of proving, by a preponderance of the evidence, that an award of custody to him or her would serve the best interests of the child."

Father argues that the trial court did not appropriately consider Mother's "poor life choices" when granting Mother shared legal and physical custody of Child based upon her prior OnlyFans activities. Father asserts that this activity called into question Mother's mental health and posed a risk to Child. Father further contends that Mother was not forthright at trial regarding her work on OnlyFans as she stated that her OnlyFans subscribers would see her in "various stages of undress," when in fact she was broadcasting herself performing sex acts….

The [trial] court noted Mother's testimony that she deleted her OnlyFans account in May 2020, she has never posted adult content on any other site, her interactions with her patrons on the site were entirely virtual and solely through her pseudonymous username, and she never created OnlyFans content in her home during a period in which Child was present. The court further observed that the CYS investigation revealed that Father's child abuse report was "unfounded."

While the court recounted that the hearing officer who initially addressed this issue in 2020 agreed with Father that Mother's OnlyFans activity reflected on her ability as a parent, the court recited its obligation to conduct a de novo custody trial and determined that it was not bound by the hearing officer's finding. The trial court added that its focus under Section 5328(a) was on the best interests of the child with weighted consideration of any factor that affects the child's safety, but "none of [the custody] factors include the morality of a parent's judgment or values."

The trial court then determined that Mother's OnlyFans activities were irrelevant to the court's custody analysis:

At the proceedings before the custody hearing officer, Father failed to establish that Mother's activities on OnlyFans caused [C]hild any harm. Indeed, the record before the hearing officer as well as the record of the custody trial failed to establish that [C]hild was aware of Mother's activities on OnlyFans.

Moreover, the [c]ourt credits Mother's testimony that [C]hild was always in Father's custody while she was creat[ing] content for OnlyFans. Father presented no evidence to prove the contrary. Additionally, Father failed to establish that Mother's participation in OnlyFans raised any safety concerns. Indeed, he could not, as Mother participated anonymously with her location shielded. Last, the [c]ourt notes that CYS investigated Father's allegations and subjected [C]hild to a forensic interview. The CYS investigation was closed after it deemed Father's allegations "unfounded."

In sum, the Court has considered Father's concerns regarding Mother's OnlyFans page. The statutory custody factors contained in § 5328(a) fail to permit this Court to judge a parent's private adult behavior outside the presence of the child at issue absent evidence that it implicates [the] child's safety or otherwise is inimical to the best interests of the child. Father failed to show that Mother's activities three years ago on OnlyFans affect [C]hild's best interests or are detrimental to her safety. Indeed, upon this [c]ourt's Order, Mother deleted the page on May 15, 2020, over three years ago. Accordingly, the [c]ourt declines to consider Father's allegation, finding it stale and beyond the purview of this [c]ourt's statutory obligation pursuant to § 5328(a).

Upon a careful review of the record, we find no abuse of discretion in the trial court's conclusion. The court comprehensively considered the evidence adduced at trial concerning Mother's OnlyFans usage and fully addressed Father's arguments that Mother's past behavior on the site negatively reflected on her ability to parent Child. The court's factual findings that Mother created her OnlyFans content when Child was not present in her house, Child was unaware of Mother's activities on the site, and such activities did not pose a danger to Child's safety are supported by the record. As an appellate court, we may not disturb the trial court's reasonable conclusion, supported by competent evidence, that Mother's OnlyFans activity did not weigh against an award of custody in her favor.

Moreover, we agree with the trial court's rejection of Father's request that the court consider Mother's purported moral deficiencies as a result of her OnlyFans usage. As the trial court explained, a parent's morality is not an enumerated custody factor. Furthermore, this Court has repeatedly rejected consideration of a parent's morality or sexual lifestyle when fashioning a custody award. In V.B. v. J.E.B. (Pa. Super. 2012), we held that a trial court "injected artificial morality concerns that the legislature has deemed irrelevant" when finding that a father's participation in prior polyamorous relationships weighed against him in a custody ruling where there was no finding that the relationships had an adverse impact on the child. See also Bolds v. Bowe (Pa. Super. 2022) (citing V.B. and disapproving of trial court's criticism of father for leading a "double life" of polyamorous relationships but declining to overturn award of primary physical custody to mother where court "based its assessment of the factors upon [f]ather's behavior, not its preconceived notions or judgment against [f]ather's immorality"). Similarly, in Michael T.L. v. Marilyn J.L. (Pa. Super. 1987), we held that the trial court committed a "gross abuse of discretion" in relying on the mother's "active sex life" during periods when the child was not in her custody as a basis for awarding custody of the child to the father absent evidence that the mother's promiscuity had an adverse impact on the child. Likewise, here, where the trial court found that Mother's past usage of OnlyFans to earn supplemental income was not a detriment to her parenting of Child or to Child's safety, the court properly declined to consider this issue. {Mother testified that she is a licensed therapist [a quick Google search suggests she's an addiction and substance abuse counselor -EV] and was employed in that capacity throughout the relevant period.} …

Note the complicated answer to the question in the post title:

  1. The mother apparently lost all in-person contact with the child for six months (Feb. 26, 2020 to Aug. 25, 2020).
  2. She then had sharply reduced parenting time with the child for seven more months (Aug. 25, 2020 to Mar. 30, 2021), though she then regained the roughly half-and-half parenting schedule that had been in place over the preceding years.
  3. She didn't recover full shared legal custody for over two more years (Mar. 30, 2021 to June 27, 2023).
  4. She was ordered to shut down her OnlyFans account (presumably on pain of losing any chance to regain access to her child).
  5. But ultimately the appellate court concluded that the trial court didn't act unreasonably in returning custody to her.

Items 1 and 4 strike me as hard to justify, especially since creating pornography is generally protected by the First Amendment (unless it depicts children, or is so hard-core as to qualify as unprotected "obscenity," and nothing in the opinion suggests that was so). If there was real evidence that the child was being mistreated—e.g., by being depicted in the OnlyFans videos—that would have justified a temporary loss of access, but only for so long as was needed to verify that this isn't happening. (For more on my views about parents' free speech rights in child custody cases, see this article, though it discusses other kinds of fact patterns.)

To be sure, I can expect that many children might be upset to later learn that their parents had done porn, whether because they hear about it from classmates or see it themselves. But children might be upset about their parents' having done all sorts of things; I don't think that this concern about children's potential disapproval or embarrassment (or hypothetical future strain on the parent-child relationship caused by such disapproval or embarrassment) should be a basis for a legal reduction in a parent's custody rights.

Item 5 thus seems to me quite correct. But I'd love to hear what others think.