The state and the "psycho ex-wife": parents' rights, children's interests, and the First Amendment.

• Jurisdiction: United States
• Author: Kanavy, Kelly
• Date: 01 March 2013

INTRODUCTION I. BEST INTERESTS, CUSTODY ORDERS, AND THE FIRST AMENDMENT: OUTLINING THE CONFLICT A. The Amorphous Best Interests Standard B. Custody Orders: The Basics C. Custody Orders and the First Amendment II. FRAMEWORKS FOR RESOLUTION A. The Conflicted Contemporary Jurisprudential Paradigm: Compelling State Interests 1. Prior Restraints, Content-based Orders, and Compelling State Interests 2. Compelling State Interests in the Context of Custody Orders: Current Case Law a. Case Law: Best Interests as Compelling b. Case Law: Best Interests as Insufficient 3. Irreconcilable Differences in State Courts' Analysis of Custody Orders and the First Amendment B. Stepping Outside the Constitution 1. State Action 2. Viability of Professor Dwyer's Judge-As-Fiduciary Concept: Descriptive Accuracy and Social Costs C. The Substantial Harm Standard D. Morelli under the Three Standards CONCLUSION INTRODUCTION

Unless you've experienced it, you can't begin to imagine how helpless you are as a parent when you're dealing with a Psycho Ex-Wife with little or no capacity to grasp her own parental inadequacies. (1) On June 6, 2011, a judge in a small Pennsylvania county courthouse issued a custody order and started a firestorm. The order, citing the children's best interests, (2) required a father embroiled in a custody battle to take down his critical blog "The Psycho Ex-Wife" (3) and refrain from mentioning either his wife or his children "on any public media." (4) It immediately garnered national media attention, (5) outraged divorced-parent Internet support groups around the country, (6) and was even deemed blog-worthy by a renowned constitutional expert. (7) All of these observers posed the same question: how could this restriction on speech be consistent with the demands of the First Amendment? Expressing concern about the judge's order, Professor Eugene Volokh mused, "That strikes me as a pretty clear First Amendment violation; whatever the scope of family courts' authority to protect children's best interests might be, it can't extend to criminalizing one adult's public speech about another adult." (8)

These types of orders, however, are actually quite common in family court proceedings. Under the amorphous "best interests of the child" (9) standard, judges have ordered parents to bring their children to church, (10) avoid criticizing ex-spouses (11) or their religious beliefs, (12) refrain from bringing intimate partners near the children, (13) and even communicate feelings of love

toward their ex-spouses. (14) Although some scholarship has addressed judges' consideration of parents' religious beliefs or sexual preferences in granting custody, the constitutionality of family court orders structuring family interaction and crafting rules of parental behavior, like the custody order issued by Judge Diane Gibbons in Bucks County, "has largely escaped the notice of all but a few First Amendment scholars" and "survives partly because of the little attention paid to family law proceedings." (15) Thus, family law courtrooms have the potential to become constitutional "twilight zones" (16) in which judges adjudicating the responsibilities and obligations of the most basic unit of American society illegitimately violate parents' constitutional rights in the name of children's best interests. In this framework, are children's best interests compelling enough to override parental claims to free speech? Is it time for a radical normative rethinking of the role and function of the family law judge to more accurately correspond to reality? Or is there another legal standard that could be imported for use in this context?

This Comment examines the role that the First Amendment currently plays in family court proceedings and highlights the constitutional tensions inherent in speech restrictions issued under the best interests standard. As the adage goes, marriage is a "contract between three parties--the husband, the wife, and the State." Yet it is unclear how the State is or should be constrained in adjudicating the parties' responsibilities once the marital relationship is dissolved, particularly when there are children involved whose interests must be weighed against parental rights. Cases such as Pierce v. Society of Sisters (17) and Yoder v. Wisconsin (18) have affirmed a parent's fundamental right to control the upbringing of his or her children, but when families dissolve during divorce and parents fundamentally disagree about how to raise their children, judges--governed only by the vague and easily manipulated best interests standard--inject themselves into the proceedings and suddenly wield immense power over parental decisionmaking, relationships, and essential liberties. Due to the weight of the liberties at stake, greater attention to this area of law is vital to ensure both that parental rights are not trampled and that children's interests are protected. This Comment provides such attention by examining contemporary court practices in issuing custody orders restricting speech, analyzing the advantages and shortcomings of three potential jurisprudential frameworks, and identifying the best standard of analysis that better protect both parents' rights and children's interests.

Part I examines the best interests standard and explores the potential for constitutionally problematic effects of utilizing such a vague standard to restrict speech. Part II discusses how courts have and should resolve the tension between the First Amendment and custody orders restricting parental speech. This Comment then identifies and evaluates three potential frameworks to address custody orders restricting free speech. The analysis of the advantages and disadvantages of each method considers both the demands of the family court system and the sensitive nature of the issues involved.

The first framework--the "pure" First Amendment approach--subjects custody orders restricting speech to the same level of scrutiny applicable to any other governmental order restricting speech. This method is premised upon the notion that all custody orders prohibiting parents from making disparaging comments to their children or to the public are content-based restrictions on speech. It would require family court judges to identify a compelling state interest served by the restraint and narrowly tailor the order to advance that interest. Courts have split as to whether children's best interests constitute compelling state interests, but there are inclusiveness problems with either answer to the question: Where courts find best interests compelling, the standard is so vague and easily manipulated that it does not adequately safeguard parental free speech rights. Conversely, where courts refuse to recognize children's best interests as compelling, children are removed from consideration entirely, which can result in harm to the children. Thus, the "pure" First Amendment framework is ultimately rejected as both overinclusive and underinclusive.

The second framework contemplates the judge as fiduciary: a nonstate actor "stepping outside of the Constitution" and considering only the child's best interests. Despite the exciting possibilities revealed by this radical conception of the State's role in family custody proceedings, this method is not a viable solution because it allocates too much unchecked power to judges, endangers parents' established constitutional rights, and creates murky implications for the role of a judge as a nonstate actor.

The third potential framework, a Goldilocks solution between the stringent strict scrutiny standard and the loose, constitutionally unregulated judge-as-fiduciary standard, is the substantial harm principle. This balancing test has been used to analyze the constitutionality of custody orders that restrict parents' free exercise rights (19) and appears to be a natural fit in the context of custody orders restricting speech. (20) This standard permits courts to consider the effects that speech is likely to have on the children, while avoiding the morass of the best interests standard. It also recognizes the importance of the parental speech right and remains within established constitutional bounds. Thus, the substantial harm principle stands out as the best framework to analyze custody orders that restrict parental speech, and this Comment recommends its adoption by family courts.

1. BEST INTERESTS, CUSTODY ORDERS, AND THE FIRST AMENDMENT: OUTLINING THE CONFLICT

   Children represent the ... soft underbelly of liberal theory because ... the state cannot be as standoffish or as respectful of privacy when the interests of children are involved as they are in other areas of life. (21) A. The Amorphous Best Interests Standard

   When a family unit dissolves, (22) parents who are unable to agree on how to structure their relationships with each other and their children often ask the State (23) or another arbiter (24) to assist them in reaching an agreement. Although "[t]he great majority of custody arrangements following divorce arise by arrangement of the parents," (25) the Morelli case demonstrates that the contested issues are typically wrought with emotion and can result in intractable arguments and, ultimately, litigation. Even when ex-spouses do reach custody agreements, a "judge or magistrate is supposed to approve the agreement only upon determining independently that the agreement is not inconsistent with the substantive standard that applies when the court dictates a custody arrangement." (26) Thus, judges inevitably enter the intimate complexities of family life after divorce: "[I]t has become commonplace for courts presiding over divorce proceedings to fashion the frame and details of the relationship between parents and their children. Divorce courts not only decide who within divorcing families sees whom ... but encroach upon the most intimate details of everyday familial life." (27)

   In determining whether and...