Custody and Free Speech

Can a judge order you not to post photos of your child on Facebook or other social media? A case out of Oklahoma shows how child custody rulings can crash into your First Amendment rights.

Custody Speech

Oklahoma: Like the Play, Only No Singing

According to reports, Sabrina Stone gave her infant son up for adoption. Shortly before the child turned two, he tragically drowned in his new family’s (the Russells’) swimming pool.

According to the Russells, Stone threatened them and their other child and other family members; she came to the funeral home and wrote her name several times in the viewing book, listing herself as “bio mother”; and she posted allegedly “stolen pictures” of the son.

The Russells then got a restraining order forbidding Stone from contacting the Russells, but also providing that, Defendant shall not post any pictures of the minor child on social media, including Facebook.

Florida Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children in custody cases. Florida courts have to balance a parent’s right of free expression against the state’s parens patriae interest in assuring the well-being of minor children.

In Florida, there was a case a in which a judge prohibited a parent from speaking Spanish to a child. A mother went from primary caregiver to only supervised visits – under the nose of a time-sharing supervisor. The trial judge also allowed her daily telephone calls with her daughter, supervised by the Father.

The Mother was Venezuelan, and because the Father did not speak Spanish, the court ordered: “Under no circumstances shall the Mother speak Spanish to the child.”

The judge was concerned about the Mother’s comments, after the Mother “whisked” the child away from the time-sharing supervisor in an earlier incident and had a “private” conversation with her in a public bathroom. She was also bipolar and convicted of two crimes.

The Second District Court of Appeals, which covers Tampa and Southwest Florida, reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children.

In other words, in that balancing act, the best interests of children can be a compelling state interest justifying a restraint of a parent’s right of free speech.

Oklahoma: We’re OK you’re not.

The Oklahoma injunction covered any pictures, and when Stone posted a picture, she was arrested for violating the order, and prosecuted and convicted.

The arrest warrant was based on Stone’s posting “pictures of the deceased child on face book,” as well as “several post[s] and comments about the situation,” not on any allegations of threats, violence, or the like.

The free speech case is available at Reason here.