Parent Free Speech: Can the Judge Gag You?

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Child Custody on Friday, March 18, 2016.

Can a child custody judge order you not to speak to your children about something? A Washington mother just found out the hard way.

I’ve written about free speech and divorce after a Venezuelan mother was ordered not to speak Spanish to her child. But, what about the content of your speech, can a judge stop you from talking?

A Washington State husband, Charles Black, learned a surprise from his wife, Rachelle Black. They were married for 7 years, had three children, and raised their children in a conservative Christian home; sending them to religious-based schools.

Seven years after marriage, Rachelle told Charles that she was gay, and began a romantic relationship with another woman. Two years later, Rachelle filed for divorce.

Rachelle told the children she was gay, gave her oldest child a book about sexuality and faith, and showed the two oldest children a documentary about a transgendered child.

The trial judge felt it will be too challenging for the children to reconcile their conservative religious upbringing with the changes occurring within their family’s sexuality, and ordered

“that the mother refrain from having conversations with the children regarding religion, homosexuality, or other alternative lifestyles”

The Washington Court of Appeals reversed:

Our courts have upheld restrictions on certain types of unprotected speech when they have served the best interests of the child. But while the welfare of children is the State’s paramount concern in dissolutions, restraining speech merely based on content presumptively violates the First Amendment . . .

[E]ven in the context of family law, content-based speech restrictions are presumptively unconstitutional.

The trial court also gave the Father ultimate decision making for the children’s religious upbringing, and the court reversed that ruling too:

There must be a substantial showing of actual or potential harm to the children from exposure to the parents’ conflicting religious beliefs; this harmonizes the children’s best interests with the parents’ constitutional rights to free religious exercise.

The opinion of the Washington State Court of Appeals Division Two is here.