Trial Court Had Ordered Mother to Only Call Son by First Name (Javier), not Middle Name (Reece), in Public
But the Colorado Court of Appeals just reversed that, in part on First Amendment grounds.
From In re Marriage of Teruel De Torres, decided Wednesday by the Colorado Court of Appeals (Judge Sueanna Johnson, joined by Judges Craig Welling and Lino Lipinsky de Orlov):
In this post-dissolution of marriage proceeding involving Jocelyn Javernick (mother) and Juan Javier Teruel De Torres (father), mother appeals the district court's December 22, 2023 order (December 2023 order), which … determined that … the parents may only refer to the child … as "Javier" or "Javi" (and not his middle name, "Reece") in … public settings.
The court dissolved the parents' marriage in May 2020. The parents have one child, who was born in September 2018. The child's full legal name is Javier Reece Teruel. During the dissolution proceedings, mother requested that the child's name be changed to Reece Teruel Javernick, claiming that the parents had called him Reece since birth. Father objected, arguing that mother was trying to distance the child from him by changing the child's name, particularly as the child shares father's first name….
In the March 25, 2020 permanent orders (March 2020 permanent orders), the court denied mother's request to change the child's legal name on his birth certificate. But the court found that the "strongest and most credible evidence [was that] the [parents] referred to the [c]hild [as] Reece since his birth" and that father had only recently begun calling the child "Javier," "Little Javier," "Little Javi," or "Javi." The court found that allowing the parents to use two different names would be "confusing for the [c]hild" and, therefore, ordered the parents to call him "Reece" and to "require third parties, including family, friends and professionals" to call the child solely by that name….
Father appealed the name portion of the March 2020 permanent orders, arguing that the district court lacked authority to direct the parents to call the child by a particular name. A division of this court vacated that aspect of the permanent orders, concluding that a remand was necessary for further proceedings. The division instructed the court (1) to ascertain whether mother's counsel had conceded the name issue, thereby possibly rendering court intervention unnecessary; (2) to allow the parents to brief the issue more fully if it remained unresolved; or (3) to determine whether, through counseling, the parents had resolved the issue themselves. [Eventually, on remand, the court issued the order being challenged here. -EV] …
Mother's First Amendment challenge involves a content-based restriction, as the December 2023 order's restriction is "dependent solely on the nature of the message being conveyed" (i.e., her preferred name for the child). The government may only regulate the content of constitutionally protected speech to promote a compelling state interest, and any such regulation must be narrowly tailored to achieve that end.
In Colorado, "absent demonstrated harm to the child, the best interests of the child standard has been determined to be 'insufficient to serve as a compelling state interest overruling the parents' fundamental rights.'"
A showing that a parent's exercise of their free speech rights "threatened the child with physical or emotional harm, or had actually caused such harm, would establish a compelling state interest sufficient to justify a restriction" on the parent's rights. The standard is "demanding," as the actual or threatened harm to the child "must be 'substantial'" and "demonstrated in detail." …
At oral argument, the division raised many hypothetical scenarios to both parents' counsel as to what, under the December 2023 order, mother may or may not be allowed to say to third parties about the child's name in public. Given the district court's near-blanket prohibition on calling the child anything but his first name in public, counsel's responses to our hypotheticals demonstrated that many circumstances could arise that would, under the speech restriction, subject mother to potential contempt without prior notice to her.
For example, under the existing December 2023 order, could mother say, "I must tell you by court order that my son must be called by his first name, but I prefer calling him by his middle name and you will hear me calling him by that name"? Or could mother say, "While my son is around me, I will call him by his first name but if we are alone in a parent-teacher conference, I will refer to him by his middle name because that is my preference"? In short, the December 2023 order is not narrowly tailored to the extent that it restricts what mother may call the child in public or what she might say to third parties in public about what she prefers to call the child.
On remand, before the court can restrict (or compel) either parent's speech in public as to the child's name, it must point to evidentiary support that the "demanding" standard is met by showing that the harm to the child is "substantial," and it must support that finding of harm "in detail." … If the court finds that the record supports a restriction (or specific requirement) on either parent's speech related to the child's name, the court must then consider whether the content-based restriction or requirement is narrowly tailored to justify it….
For more on this general subject, see Parent-Child Speech and Child Custody Speech Restrictions. Duncan Griffiths, Christopher Griffiths & Kimberly Newton (Griffiths Law PC) represent Javernick.