Spanish Prohibited: Custody & Freedom of Speech

By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Timesharing/Visitation on Sunday, February 1, 2015. Florida courts have a lot of power to protect children in custody cases. Does that mean a judge can order you not to speak to your child in Spanish? An appellate court outside Tampa just answered this question, balancing child protection and freedom of speech. In Perez v. Fay, a mother went from being the primary caregiver to having only supervised time-sharing twice weekly for 4-hours under the nose of a timesharing 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. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy. The Second District Court of Appeals, which covers Tampa and Southwest Florida, reversed the restriction. Two of the three judges overturned the order on technical grounds. But it was Judge Wallace who makes the Constitutional argument in an excellent concurring (separate) opinion:

The trial court’s order also violates the Mother’s most basic rights. More than ninety years ago, the United States Supreme Court declared that the agents of the state may not tell parents what languages they may teach their children.

Here, the trial court’s order improperly infringes on the Mother’s constitutional right to determine the language or languages about which her child may receive instruction.

In addition, the Florida Constitution guarantees its citizens the right of privacy . . . “Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein.”

Undoubtedly, the sphere of private life in which one must be let alone, free from governmental intrusion, includes the right to speak with one’s child in the language of one’s choosing and not to have that choice dictated by the agents of the state.

Sadly, the trial court’s order in this case prohibiting the Mother from speaking Spanish to her daughter is not an isolated incident. One commentator reports that trial judges in Texas and Nebraska have issued similar edicts prohibiting parents from speaking Spanish to their children.

In my view, Florida’s trial courts have no business telling parents what languages they must speak or must not speak with their children.

More analysis about the case comes from the Washington Post, Volokh Conspiracy. The opinion of Perez v. Fay can be read here.