Custody Order Violated Child’s Free Speech Rights

The Pennsylvania Court of Appeals recently found that a trial court’s restrictions on what a child could call his stepfather infringed on the child’s free speech rights. The trial court, concerned that each parent was creating barriers to the child’s relationship with the other parent, included in its custody order the following provision: “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.”

The appellate court found the provision to be a content-based restriction that did not meet the strict scrutiny standard. “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.“ However, the trial court had not made any findings about how the terms that the child used to refer to his stepfather could impact the child’s relationship with his biological father. “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.”

The court recognized that a broad rule applying to all custody cases is not possible. "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.“

The trial court was attempting to address a real problem, but it chose too blunt an instrument. Children have a right to determine some relationships for themselves, and courts, at least in Pennsylvania, should not interfere with that determination.