1st Amendment Violation.

Byline: Derek Hawkins

7th Circuit Court of Appeals

Case Name: E.A., et al. v. Mary K. Gardner

Case No.: 18-2550

Officials: EASTERBROOK, SYKES, and BARRETT, Circuit Judges.

Focus: 1st Amendment Violation

This case began as a child custody dispute in state court. Dana Alden and his wife divorced in 2009. They shared custody of their two children. In 2012 Alden's ex-wife complained to the court that Alden was trying to turn the children against her. The court appointed a psychologist, Mary Gardner, to evaluate the children. See 750 ILCS 5/604.10(d). Gardner concluded that Alden was using "severe alienation tactics" to drive a wedge between Alden's children and their mother. Gardner recommended that the court limit Alden to supervised visitation and give full custody of the children to their mother. After motions and a hearing, that's what the state court did: it terminated Alden's custody, awarded sole custody to the mother, and ordered all of Alden's visitation to be supervised. The Appellate Court of Illinois affirmed. In re Marriage of Alden, 2014 IL App (2d) 121046-U.

Alden presents two theories for the statute's invalidity. First, he argues that the statute violates the First Amendment (applied to the states by the Fourteenth) by regulating speech: it takes parents' speech into consideration when deciding on the best interests of the child. Second, he contends that the statute violates the Fourteenth Amendment's equal protection clause because it treats parents differently based on whether they are divorced: the standard of proof for awarding or modifying divorced parents' custody is preponderance of the evidence, 750 ILCS 5/602.7(b), 750 ILCS 5/603.10, while otherwise the standard for terminating parental rights is clear and convincing evidence, 705 ILCS 405/2-21(5)(iii). (The statutes explicitly referencing the preponderance standard were enacted in 2015, after Alden's state court case began. State courts had interpreted...