Tag: Child custody & free speech

Sex Talk and Modifying Child Custody

In the wake of a new Florida law protecting a parent’s rights not to teach sex education, comes a case in which too much sex talk ended up modifying one parent’s child custody. Recently, a Michigan family law case drew a line between educating your children about sex and inappropriate conversations.

Sex Talk child custody

The ‘Birds and the Bees’

The parents have four children: three daughters and one son, and they have been divorced since 2018. They were awarded joint legal custody of the four children with a split: One parent had the boy, and the other parent had the three girls

In 2021, Father asked to change legal residence, parenting time, and custody relative to EJ and JJ, requesting that the trial court award him primary physical custody of the two children and that the court change their legal residence from Petoskey to his home in Plymouth, Michigan.

The Mother opposed the motion. During an evidentiary the Father introduced several exhibits, including a recorded conversation between the Mother and the three daughters indicating that she had inappropriate conversations with the children, had difficulties controlling her anger, used vulgarities and profanity in conversations with the children, and consumed an excessive amount of alcohol during parenting time.

After the evidentiary hearing, the referee recommended that the trial court deny the motion. The Father filed an objection which was heard by the trial judge in a de novo hearing. The Father argued he was not given sufficient time to present evidence necessary to meet the burden of proof, that the referee should have found that there was a joint custodial environment, and that it was in the children’s best interests to change custody.

The trial court granted Father’s motion and awarded him primary physical custody. The Mother appealed.

Florida Modifying Custody

I have written about modification of child custody before. In Florida, during the initial child custody case, a family court must determine the best interest of a child based upon all of the factors listed in our child custody statute.

After determining the best interest of the child, and entering a child custody decree, Florida law grants continuing jurisdiction to the family court to modify the custody order but does not state the conditions necessary for modification.

Modification is based, in Florida, on the substantial change test. A party seeking a modification must prove a substantial and material change in circumstances, and that the best interests of the child will be promoted by such modification.

How Not To Teach Your Children

On appeal, the Mother argued the family court abused its discretion when it modified her custody. She argued under Michigan law, courts are not permitted to “modify or amend its previous judgments or orders or issue a new order so as to change the established custodial environment of a child unless there is presented clear and convincing evidence that it is in the best interest of the child.”

But at trial, there was evidence the Mother was having inappropriate conversations with the children about her sex life, wrestling with the children, negligently leaving her sex toy where one child and a friend found it, and was demonstrating she had an inability to control her anger and interact appropriately with the children.

The Michigan Court of Appeals affirmed the family judge. At the time of the trial, one child was only 11 years old and the other child was only 10 years old. There was a litany of evidence that the Mother was sharing her sex life details, making remarks about a date’s erectile dysfunction, raising her voice during a conversation with the children about sexuality, leaving a sex toy exposed, and allowing the children to be in the presence of a man she was dating who became intoxicated and acted highly inappropriately, and wrestling with the children after drinking.

The Michigan Court of Appeal opinion is here.

Child Custody and Transgender Identity

A recent child custody case in Indiana tries to balance the parents’ constitutional rights to free speech and religion against a child’s transgender identity. The state of Indiana removed a child from the parents over how the parents dealt with their child’s transgender identity. Then, the Court of Appeals of Indiana was asked to weigh in.

Custody Transgender Identity

Custody in the Crossroads of America

The case started in May 2021, when the Department of Child Services (“DCS”) received a report alleging that the mother was verbally and emotionally abusing her 16-year-old child by using rude and demeaning language regarding the teen’s transgender identity. As a result, the teenager had thoughts of self-harm.

Ten days later, DCS received a second report alleging both parents were involved in being verbally and emotionally abusive because they do not accept their child’s transgender identity — and the abuse was getting worse.

A case manager investigated, and reported the child had been suffering from an eating disorder. The other findings included that the parents had withdrawn the child from school and DCS was unaware of the intent to enroll the child in a new school; they had discontinued the child’s therapy; the child did not feel mentally and/or emotionally safe , and would be more likely to have thoughts of self-harm and suicide if returned.

DCS filed a petition alleging the child’s physical or mental condition was seriously impaired or seriously endangered due to the parents’ neglect and/or the child’s physical or mental health was seriously endangered due to injury by the parents’ acts or omissions.

The juvenile court issued an order finding that it was in the child’s best interest to be removed from the home due to the parents’ “inability, refusal or neglect to provide shelter, care, and/or supervision at the present time.”

At the close of a subsequent hearing, the court informed the parties that it would leave in place its earlier order prohibiting the parents from discussing the child’s transgender identity during visitation, found the child needed services and therapy, in which the parents were ordered to participate and ordered that the child would remain in the current home or placement with DCS supervision.

The parents appealed, claiming the order was clearly erroneous, violated their constitutional rights to the care, custody and control of their child, and violated their rights to the free exercise of religion and freedom of speech.

Florida Child Custody

I’ve written about child custody and issues involving the constitution before, primarily between the parents. The case in Indiana however, is not between the child’s parents, but between the parents and the State of Indiana.

Other cases can involve disputes between parents over how to handle the social gender transition of a child. In Florida shared parental responsibility is the preferred relationship between parents. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s health are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court. At the trial, the test applied is the best interests of the child.

Determining the best interests of a child is based on an evaluation of statutory factors, and one equitable catch-all factor, affecting the welfare and interests of the child and the circumstances of the child’s family.

The statute authorizes one parent to have ultimate responsibility for certain decisions. For example, health care is an area of ultimate responsibility a court can award. When a decision on health goes to trial, the court grants one parent ultimate responsibility to make that decision.

Hoosiers or Abusers?

The Court of Appeals rejected the parents’ religious freedom arguments. The Father testified that the parents were not allowed to affirm their child’s transgender identity, or use their child’s preferred pronouns, based on their sincerely held religious beliefs.

But the appellate court found that the order was based on the child’s medical and psychological needs, not on the parents’ disagreement with the child’s transgender identity. Put differently, the child’s removal was not based on the fact the parents didn’t accept the child’s transgender identity, and their future reunification was not contingent on the parents violating their religious beliefs or being forced to affirm the child’s transgender identity.

Accordingly, the order did not impose a substantial burden on their free exercise of religion. Moreover, the appellate panel found that protecting the child’s health and welfare was a compelling interest justifying state action that is contrary to the parents’ religious beliefs.

The Court of Appeals also rejected the parents’ freedom of speech arguments. The trial court recognized that the child’s eating disorder and self-isolation were connected to the discord at home about the child’s transgender identity.

Accordingly, the trial court’s limitation on the parents from discussing the topic directly targets the State’s compelling interest in addressing the child’s eating disorder and psychological health, as opposed to the content of the parents’ speech itself.

The order was found to be narrowly tailored because it restricted the parents from discussing the topic with the child only during visitation. However, the order permitted the topic to be discussed in family therapy.

Limiting the parents to only discussing the issue in family therapy was seen to allow the family to work on conflict management, so that they will eventually be able to safely talk about it outside of therapy. Accordingly, the order restricting conversation of this topic outside of family therapy was a permissible prior restraint.

The Court of Appeals of Indiana opinion is here.

Free Speech and Child Custody Disputes

Free speech, and the rights of people going through child custody disputes, are in the news again. Recently, a family law judge in Pennsylvania gagged – not the parents – but the Father’s new wife from online posting. The family judge ordered the child’s stepmother from posting anything on Facebook about the child, the Mother, or the case.

Free Speech Child Custody

Gagging Stepmothers

In the Pennsylvania case, a Father appealed from the trial court’s order that restricted the speech of his new wife, a non-party to the custody case, the child’s Stepmother. The Father argued that the family court’s order improperly restricted the non-party Stepmother’s speech on Facebook.

The Mother sought to enforce the court’s modified custody order, remove the Child from Stepmother’s home, and place the Child with Children and Youth Services (CYS). The trial court held a telephone hearing, and at that hearing, Mother told the court for the first time about a post that Stepmother had made on Facebook.

Specifically, Mother’s counsel argued the Stepmother was engaging in “pure alienation” through Facebook posts:

OK…. I’m going to lay everything out for ppl to know. My husband [Father] is currently in BCP on indirect civil contempt pertaining to child custody. The judge won’t release [Father] until our minor child attends four days of this out of state program with Linda Gottlieb. Our minor child is afraid of her Mother (she lives out of state) and has been fighting not to go to this out-of-state program with her Mother to fix their relationship. . . Our minor child is still with me as she fought not to go. How much emotionally [sic] and mental abuse can a child go through. . . I have 2 great attorneys, but no matter what we do the judge sides with the other side. They are claiming parental alienation. There is no legal record of parental alienation. Now anyone that knows me or my husband knows we aren’t those ppl. We have encouraged, positive affirmations etc.. [sic] this doesn’t matter to our minor child because the child is in fear. . . We have been accused of interfering with our child going to this program. We aren’t interfering. Our child is fighting it.

The trial court issued an order that granted Mother’s petition and stated, Father and Stepmother shall not use online or web-based communications to discuss this matter.

The trial court also order the Father and Stepmother to remove the Facebook post which contains information related to the child and not post any discussion or information regarding child’s custody or other information regarding the child.

Father raised only one issue on appeal, can the judge censor the speech of the Stepmother on Facebook even though she was not actually a party in the child custody case?

Florida Child Custody and Free Speech

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. 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 have been cases 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. The Mother was also bipolar and convicted of two crimes.

The Florida appeals court 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.

You’ve Got a Friend in Pennsylvania

Back in the Pennsylvania case, the appellate court quickly noted that the Stepmother was simply not a party to the lawsuit between Father and Mother, she was not served with process, and she had no notice or opportunity to challenge the communications restriction order.

Because the non-party Stepmother did not have notice nor an opportunity to challenge the order, and the parties did not address the trial court’s exercise of personal jurisdiction over her the appellate court held that the family judge had no authority to impose a gag order on the Stepmother and vacated the order.

The opinion is here.

Custody Rights and the Unvaccinated Parent

Whether an unvaccinated parent can lose their child custody rights is a painful topic these days given the talk of vaccine mandates around the world. The United States is not alone in countries where people have pointed positions on vaccine mandates. A court in Canada was recently left to make a painful decision about custody rights and an unvaccinated parent.

Custody Vaccination

A Shot of the Constitution

In the United States, making the COVID vaccine mandatory has become more of a constitutional issue than a public health one. The issue has become especially sharp in child custody cases. Parents have a fundamental right to raise their children, but there can be exceptions. Courts have had a difficult time threading the needle when parents disagree about vaccinations.

These issues are not just in the United States either. The Ontario Court of Justice recently had to decide whether a father’s decision to remain unvaccinated against COVID should deprive him of his parenting time.

In L.S. v. M.A.F., the mother sought an order that the father’s parenting time be supervised. Why? The mother claimed that due to the father’s significant anger management issues, she feared for the child’s safety if left alone with him.

The mother also said she trusted the paternal grandmother and the father’s sister to supervise the father’s parenting time. The father opposed and sought liberal and unsupervised parenting time with his child.

During cross examination, the father revealed that he was not vaccinated against COVID-19. He also had no intention to get vaccinated, claiming that it was contrary to his Rastafarian beliefs, for which the court notes he did not provide evidence.

He was nevertheless willing to take safety precautions during his parenting times, for example, wearing a mask. He also attested that the paternal grandmother is fully vaccinated and that he is comfortable with taking the child to her home.

Citing Justice Robert Spence in his decision in A.G. v. M.A., 2021 ONCJ 531, the court said that there were competing interests at stake: on the one hand, parenting time increased the child’s risk of infection for COVID-19, and on the other, the child is entitled to have a meaningful relationship with her father.

Florida Vaccination

I’ve written about the injection of vaccines into Florida child custody cases before. In Florida, the prevailing standard for determining “custody” is a concept call shared parental responsibility, or sole parental responsibility. Generally, shared parental responsibility is a relationship ordered by a court in which both parents retain their full parental rights and responsibilities.

Under shared parental responsibility, parents are required to confer with each other and jointly make major decisions affecting the welfare of their child. In Florida, shared parental responsibility is the preferred relationship between parents when a marriage or a relationship ends. In fact, courts are instructed to order parents to share parental responsibility of a child unless it would be detrimental to the child.

Issues relating to a child’s physical health and medical treatment, including the decision to vaccinate, are major decisions affecting the welfare of a child. When parents cannot agree, the dispute is resolved in court.

At the trial, the test applied is the best interests of the child. Determining the best interests of a child is no longer entirely subjective. Instead, the decision is based on an evaluation of certain factors affecting the welfare and interests of the child and the circumstances of the child’s family.

In Florida, a court can carve out an exception to shared parental responsibility, giving one parent “ultimate authority” to make decisions, such as the responsibility for deciding on vaccinations. The Chicago case, however, involves a parent’s refusal to vaccinate herself.

The decision to vaccinate raises interesting family law issues. It is important to know what your rights and responsibilities are in Florida and other states.

Getting to the Point

The court agreed with the mother that it is in the best interest of the child to have a meaningful relationship with her father.

But, after evaluating the evidence, the court concluded that it was necessary for the father’s parental time to be supervised by the paternal grandmother or his sister, both of whom are vaccinated and willing to supervise the father’s parenting time.

The father had very little parenting experience and knowledge of the child’s needs, which can be compensated by the experience of the paternal grandmother or his sister, said the court. The court also considered the father’s little control over his temper and becomes verbally abusive and threatening when angered, and the presence of a third party can ensure that the child is removed from any situation should the father lose control of his temper.

To reduce the risk of the child contracting COVID-19, the court-imposed restrictions upon the father’s parenting time, including that it shall be exercised either outdoors or in the paternal grandmother’s home and that both father and child shall always wear masks.

The court also ruled that should the father become fully vaccinated, the restrictions shall no longer apply, but if these restrictions are violated, the mother may suspend his in-person parenting time.

Canada’s Law Times article is here.

 

Mr. and Mrs. Smith and Child Testimony

The tumultuous marriage and ugly divorce of Mr. and Mrs. Smith, aka Angelina Jolie and Brad Pitt, has taken a turn for the worse, if that’s possible. Angelina is requesting to have their children testify against their father which raises the issue in family law cases of when children can be used as witnesses.

Child Testimony

Once Upon a Time in Hollywood

Jolie, who has sought to disqualify Judge John Ouderkirk from the divorce case, said in the filing Monday that he declined to hear evidence she says is relevant to the children’s safety and well-being before issuing a tentative ruling. The documents don’t elaborate on what that evidence may be.

“Judge Ouderkirk denied Ms. Jolie a fair trial, improperly excluding her evidence relevant to the children’s health, safety, and welfare, evidence critical to making her case,” according to the filing in California’s Second District Court of Appeal.

The actress also said the judge “has failed to adequately consider” a section of the California courts code, which says it is detrimental to the best interest of the child if custody is awarded to a person with a history of domestic violence. Her filing did not give details about what it was referring to, but her lawyers submitted a document under seal in March that purportedly offers additional information.

Jolie sought a divorce in 2016, days after a disagreement broke out on private flight ferrying the actors and their children from France to Los Angeles. Pitt was accused of being abusive toward his then-15-year-old son during the flight, but investigations by child welfare officials and the FBI were closed with no charges being filed against the actor. Jolie’s attorney said at the time that she sought a divorce “for the health of the family.”

Her new filing says the judge has “refused to hear the minor teenagers’ input as to their experiences, needs, or wishes as to their custody fate,” citing a California code that says a child 14 or over should be allowed to testify if they want to.

Three of Jolie and Pitt’s six children are teenagers, a 17-year-old, 16-year-old, and 14-year-old. The oldest is 19 and not subject to the custody decision. They also have 12-year-old twins.

Florida Child Testimony

The issue of putting your child on the stand to testify in a divorce or family law proceeding comes up a lot. I’ve written and spoken publicly about family law issues such as expert testimony and evidence before.

Florida courts take child testimony extremely seriously. The goal, in the minds of judges, is to prevent children from being too involved with or exposed to the stress of a divorce or custody proceeding to the extent possible.

In Florida, unless otherwise provided by law or another rule of procedure, children who are witnesses, potential witnesses, or related to a family law case, are prohibited from being deposed or brought to a deposition, from being subpoenaed to appear at any family law proceeding, or from attending any family law proceedings without prior order of the court based on good cause shown.

Accordingly, before being required to testify in court, a Florida judge must determine that a child’s testimony is both relevant and necessary to resolve the issues before the court.

Fight Club

In response to Jolie’s request to have their children testify, Pitt’s attorneys said, “Ouderkirk has conducted an extensive proceeding over the past six months in a thorough, fair manner and reached a tentative ruling and order after hearing from experts and percipient witnesses.”

Pitt’s filing said the judge found Jolie’s testimony “lacked credibility in many important areas, and the existing custody order between the parties must be modified, per Mr. Pitt’s request, in the best interests of the children.”

It says Jolie’s objections and further delays in reaching an arrangement would “work grave harm upon the children, who will be further denied permanence and stability.”

It’s not clear what the current custody arrangement is because the court seals most files. When the divorce process began, Pitt sought joint custody and Jolie sought primary physical custody — meaning the children would live more than half the time with her. But changes have been made that have not been made public.

Peter Harvey, a lawyer for Jolie who is close to the case but not directly involved, said the actress “supports joint custody” but the situation is complicated and he can’t go into detail because the court proceedings are under seal.

Divorce lawyers for both sides declined to comment on the new filings. Harvey told The Associated Press that Jolie’s family struggles have prompted her to take a more active role in changing the law’s approach to custody issues.

“Ms. Jolie has been working privately for four and a half years to both heal her family and to fight for improvements to the system to ensure that other families do not experience what hers has endured,” said Harvey, a former attorney general of New Jersey who has been working with Jolie on policy issues.

Jolie has sought to disqualify Ouderkirk, a private judge she and Pitt chose to maintain their privacy, arguing that he has an improper business relationship with one of Pitt’s attorneys.

She said in Monday’s filing that if the tentative custody decision is made final by Ouderkirk, she will appeal it. Jolie, 45, and Pitt, 57, were among Hollywood’s most prominent couples for 12 years. They had been married for two years when Jolie filed for divorce.

The couple was declared divorced in April 2019, after their lawyers asked for a judgment that allowed a married couple to be declared single while other issues remained, including finances and child custody.

The AP article is here.

 

 

Free Speech and Child Custody in Massachusetts

Free speech and child custody are in the news as people discover they can’t say a lot of things after their child custody battle ends. A recent Massachusetts appeals court just decided whether some typical child custody order restrictions violated free speech laws.

custody free speech

Chilling Speech

In a Massachusetts court, a Father filed a complaint for custody, support and parenting time, seeking custody of the parties’ child. The Mother counterclaimed and a temporary custody order was entered.

A few months later, the family judge entered its own temporary order relating to exchanges of the child, telephone calls and exchanging addresses. After the final hearing, the court ordered joint legal custody and nearly equal timesharing for both parents.

The order also contained numerous restrictions on both parents’ speech. Although the court’s order appears to have the best interest of the child at heart, prior restraints on speech are very serious constitutional violations.

The order restrained the parents from making any disparaging or negative comments of any type of nature whatsoever to one another by telephone, text or email or to any other third person, to include the child and/or disparaging comments relative to one another electronic social media. The order also prohibited the parents from discussing legal proceedings with the child.

Florida Child Custody and Speech Restrictions

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. 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 have been cases 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. The Mother was also bipolar and convicted of two crimes.

The appeals court 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.

Stirring the Constitutional Speech Beanpot

The appellate court in Massachusetts reversed the speech restrictions because a number of – fairly typical speech provisions for a child custody order – placed an impermissible restraint on the mother’s speech and interfered in her child rearing.

The court found the family judge failed to provide specific findings to justify a compelling State interest in placing restrictions on the mother, or to explain why the limitations were necessary to protect the compelling interest.

Prior restraints are “extraordinary remedies,” and are “permissible only where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm.”

A prior restraint will not be upheld unless it is “justified by a compelling State interest to protect against a serious threat of harm,” and the limitation on speech is “no greater than is necessary to protect the compelling interest that is asserted as a justification for the restraint.”

Although the judge clearly was attempting to reduce future conflict between the parties in fashioning the judgment as he did, he failed to provide specific findings justifying the State’s interests in the restraints imposed; instead he simply stated that the orders were made in “the best interest of the … child,” which alone is not enough to justify a prior restraint on speech.

The Massachusetts appellate opinion is here.

 

The Grey Anatomy of Divorce and Social Media

Posting your kids’ photos on Facebook, Instagram and other social media is a fun and normal event for most parents. But posting those same pics after a divorce may not be so easy, as Grey’s Anatomy star Jesse Williams and his former wife, Aryn Drake-Lee found out.

Greys anatomy

Dr. Avery to the Courtroom

Taking over three years after splitting, the Grey’s Anatomy star, 39, and his former wife, a real estate broker, 38, were deemed legally single by a Los Angeles County judge. The agreement was initially reached in September 2019.

The exes will share joint legal and physical custody of their 6-year old daughter and 5 year old son. However, their divorce is particularly interesting because they are required to first speak to each other before they can upload photos of their children on social media according to the court documents.

One of their bitterly contested issues in the news reports about their divorce centered around their two children. Aryn filed legal motions to stop the “Grey’s Anatomy” actor from posting images of their kids on social media.

Jesse had argued that it’s his First Amendment right to post photos of his own children online. But the Mother argued differently. Aryn believed that by his posting the children’s photos online, he left the door open for Jesse’s fans to become obsessive, or even try to harm the children, in order to get closer to the star actor.

The mother was also  concerned that their children are not public figures like their father, and have their own rights. In court documents, the Mother argued she didn’t care if he shares images of their kids with family and friends, it’s the random people that worry her.

Florida Divorce and Social Media

I’ve written about divorce, social media, and some of the constitutional issues involved when the court limits your ability to post online. The Grey’s Anatomy actor and the Mother’s dispute is typical: he is concerned about his 1st Amendment protections, and she is concerned about the online safety of their children.

Divorce courts have a lot of power to protect children, and that can involve restraints on free speech, such as your ability to post photos on social media. One of the areas where this occurs most often is in domestic violence cases. That’s because speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

In Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also include cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

“This is your starting line. How well you play? That’s up to you.”

In court documents filed in August, Aryn allegedly claimed that their kids are being “emotionally compromised” because of Jesse’s dating life, saying he has a “revolving door” of women. She asked the judge to hand down an order that required women to stay away from the kids until he dates them for six months.

Aryn also argued that Jesse has an unhealthy temper. The actor countered that claim, saying that his kids have never seen him angry, but they have witnessed Aryn be verbally abusive to him. He also said she once repeatedly slammed the front door on his leg during an argument.

In July, he filed court documents claiming that his estranged wife refused his request for more time with the kids and so he asked for a “court order for a joint physical custody parenting plan.”

Jesse reportedly has been ordered to pay his ex-wife $40,000 in child support every month, as well as over $100,000 in two upcoming spousal support payments. He first met Drake-Lee while working as a schoolteacher in New York. The pair wed in September 2012 after more than five years together. In April 2017, the actor filed for divorce.

Williams and Drake-Lee were granted joint legal custody of their two children in August 2017 and joint physical custody in March 2018. The agreement according to sources, stated that Williams and Drake-Lee must alternate custody of the children for major holidays.

“When you start spinning, the children start spinning, so even if you’re looking at them and you’re telling them everything is fine, they know it’s not fine because they can feel it’s not fine.”

Jesse is now dating Hit The Floor actress Taylour Paige. They were first linked in January 2019 after spending time together at the Sundance Film Festival. He previously dated SportsNews New York anchor Taylor Rocks, and also dated Minka Kelly for several months before calling it off in January.

The People article is here.

 

Caring is Creepy

In family law, after a relationship ends, caring can be creepy. But is creepy behavior stalking? One Florida man – a father’s former boyfriend when the father’s child was born – recently found out.

caring is creepy

Gone for Good

Santiago had a long-distance relationship with the child’s father, Leon. The relationship took place at the same time the father’s child, M.L., was born through a surrogate. But Santiago and the father never resided together with the child. Their relationship ended after M.L. was about one and a half years old.

But Santiago was not gone for good. Leon sensed Santiago was following them like a phantom limb. Leon filed a petition on behalf of his child to stop Santiago from allegedly stalking the child. The father argued Santiago was engaging in some creepy obsessive behavior, including:

  1. getting a tattoo of M.L.’s name on his body;
  2. posting images of M.L. on Facebook and Instagram, representing that M.L. was his son;
  3. mailing him packages; (iv) emailing the father to express his love for M.L.;
  4. contacting the surrogate for info on them;
  5. appearing outside their home; and
  6. driving by a restaurant the father and child were eating at and making eye contact with them.

The trial court entered a final judgment preventing Santiago from having any contact with M.L. and from posting any images or comments about M.L. on all social media.

Santiago appealed.

Florida Stalking Injunctions

I’ve written about family law injunctions before, especially when free speech is impacted. Family courts have a lot of power to protect children, and that can involve restraints on free speech, such as posting on social media. That’s because speech can be enjoined under our domestic violence laws.

Domestic violence injunctions prohibiting free speech are subject to constitutional challenge because they put the government’s weight behind that prohibition: a judge orders it, and the police enforce it.

In Florida, the term “domestic violence” has a very specific meaning, and it is more inclusive than most people realize. It means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.

Domestic violence can also include cyberstalking. Cyberstalking is harassment via electronic communications. A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person and makes a credible threat to that person commits the offense of aggravated stalking, a felony of the third degree.

A credible threat means a verbal or nonverbal threat, or a combination of the two, including threats delivered by electronic communication or implied by a pattern of conduct, which places the person who is the target of the threat in reasonable fear for his or her safety or the safety of his or her family members or individuals closely associated with the person, and which is made with the apparent ability to carry out the threat to cause such harm.

New Slang

The appellate court held that Florida authorizes injunctions against stalking.

“Stalking” is when “[a] person . . . willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.”

However, aside from finding that Santiago had engaged in “stalking-like” and “creepy” behavior, the trial court did not make any express findings with respect to any of the statutory elements for stalking.

For example, “follows” means to tail, shadow, or pursue someone. In Santiago’s case, the father established, at most, that Santiago had appeared outside the father and M.L.’s and ate at the same restaurants as the father and M.L., but Santiago was never asked to explain any of these occurrences. The court simply found Santiago’s conduct, was not an example of “following” and even if it was, it wasn’t willful and malicious.

Also, the child was “totally unaware” of Santiago’s conduct, there was no evidence that Santiago’s conduct had caused “substantial emotional distress” to the child so as to constitute “harassment.”

In the inverted world of stalking law, getting a tattoo of someone else’s child, emailing the father, mailing packages to that child, contacting the surrogate to gather intel, showing up uninvited outside the child’s home, showing up at the same restaurants at the same time, making eye contact with the child, and social media posts, didn’t amount to “harassing.”

The court found that Santiago’s online postings referenced the child, but didn’t constitute “cyberstalking” because Florida requires social media threats be directed to the individual — not by content, but by delivery.

Since social media posts are generally delivered to the world at large, Florida courts have interpreted a course of conduct directed at a specific person to exempt social media messages from qualifying as the type of conduct, and Santiago never delivered his social media posts to the child.

The court agreed Santiago’s conduct might have been “creepy”, but the to impose a permanent stalking injunction against Santiago, there must be evidence that Santiago “willfully, maliciously, and repeatedly followed, harassed, or cyberstalked.”

The opinion is here.

 

You Can’t Post That: Free Speech and Child Custody

Free Speech and child custody becomes an issue every time someone posts photos of children on social media. Glowing grandparents should be especially careful. That’s because in the European Union, balancing freedom of speech and privacy has become much trickier after a Dutch court ordered a grandma to take down photos of her grandchildren.

Free Speech and Custody

European Union Speech Laws

In the Netherlands, a woman was asked by her daughter to take down pictures of her children from Facebook and Pinterest several times, but she did not respond. The daughter took this little family dispute to court, and asked a judge to stop her.

A judge in the province of Gelderland, in the eastern part of the country, decided that the grandmother was prohibited from posting photos on social media of her three grandchildren without the permission of her daughter, the children’s mother.

The District Court judge said grandma violated Europe’s sweeping internet privacy law, called the General Data Protection Regulation, or G.D.P.R. In the Netherlands, the G.D.P.R. dictates that posting pictures of minors under the age of 16 requires permission from their legal guardians.

The women, whose names were not provided in the court documents, fell out about a year ago and hadn’t been in regular contact, according to filings in the court case. After the children’s mother asked for the pictures to be deleted without the desired effect, she took the case to court.

Publishing the children’s pictures on social media would, according to the mother, seriously violate their privacy.

The Gelderland judge agreed that the grandmother did not have permission to post the pictures under General Data Protection Regulation (GDPR) legislation.

Those rules do not normally apply to the storage of personal data within personal circles such as family. However, in this case, the grandmother had made the photos public without the consent of the mother — who has legal authority over which data of her underage children may be stored and shared.’

Florida Free Speech and Child Custody

I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. 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. Currently, grandparents have little to no rights to visitation in Florida.

In Florida, there have been cases 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 appeals court reversed the restriction. Ordering a parent not to speak Spanish violates the freedom of speech and right to privacy.

Not unlike the new EU law, 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.

As the Windmill Turns

The Dutch court also held that by posting of photographs on social media, the grandmother made them available to a wider audience, the court’s ruling, published earlier this month, explained.

“On Facebook, it cannot be ruled out that placed photos could be distributed and that they may come into the hands of third parties”.

The judge ordered the grandmother must remove the pictures of her grandchildren from Facebook and Pinterest within ten days, the judge ruled. If she does not, she must pay a penalty of €50 ($55) per day that the photos are online, with a maximum penalty of €1,000 ($1,100).

The daughter had asked to impose a penalty of €250 ($275) per day if the photos remained. According to the mother’s statement, publishing the children’s pictures on social media can seriously violate their privacy.

GDPR is the European Union’s data privacy law, which came into effect in 2018. It gives people more control over their personal data and forces companies to make sure the way they collect, process and store data is safe.

The EU’s intention was to achieve a fundamental change in the way companies use data — with its central idea being that people are entitled “privacy by default.” Although EU countries seem to have taken their data protection obligations under the GDPR seriously, their efforts to balance data privacy and freedom of expression have been more uneven.

Many are concerned that the GDPR’s safeguards to protect the right to data privacy may compromise freedom of expression. As the practice of enforcing the GDPR by family members continues to unfolds, many are watching if the EU can balance privacy and freedom of expression.

The CNN article is here.

 

Child Custody and Speech Restrictions

Divorce can be stressful. Parents going through a high conflict child custody case often say and post things they come to regret. Children are the victims. In order to protect children, courts sometimes order speech restrictions in child custody cases, limiting what a parent can say, and removing posts from social media. That’s when the first amendment comes into play.

Custody Speech Restrictions

Boston Legal

Ronnie Shak and Masha M. Shak were married for about 15 months and had one child together. The mother filed for divorce when the child was one year old and then filed an emergency motion to remove the father from the marital home, citing his aggressive physical behavior, temper, threats, and substance abuse.

A Family Court judge ordered the father to leave the marital home, granted the mother sole custody of the child, and after the mother requested it, prohibited the father from posting disparaging remarks about her and the case on social media:

Neither party shall disparage the other — nor permit any third party to do so — especially when within hearing range of the child. Neither party shall post any comments, solicitations, references or other information regarding this litigation on social media.

The mother then moved for civil contempt alleging that the father violated the first orders by publishing numerous social media posts and commentary disparaging her and detailing the specifics of the divorce on social media. The Father argued this was an unfair prior restraint on his speech.

A second family judge, then modified the order stating:

Until the parties have no common children under the age of [fourteen] years old, neither party shall post on any social media or other Internet medium any disparagement of the other party when such disparagement consists of comments about the party’s morality, parenting of or ability to parent any minor children. Such disparagement specifically includes but is not limited to the following expressions: ‘cunt’, ‘bitch’, ‘whore’, ‘motherfucker’, and other pejoratives involving any gender. The Court acknowledges the impossibility of listing herein all of the opprobrious vitriol and their permutations within the human lexicon.

The Massachusetts Supreme Judicial Court granted direct appellate review.

Florida Child Custody and Speech Restrictions

I’ve written about divorce and speech issues before. How you speak to the other parent and the child, and what you post online, can have a big impact on your child custody case.

In fact, Florida Statutes expressly require a family court judge to consider how each parent protects their child from the ongoing litigation as demonstrated by not discussing the litigation with the child, not sharing documents or electronic media related to the litigation with the child, and refraining from disparaging comments about the other parent to the child.

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 interest in assuring the well-being of minor children.

In other words, the court performs a balancing act using the best interests of children, which can be a compelling state interest justifying a restraint of a parent’s right of free speech, as the measure.

Back in the Back Bay

The High Court held the second judge’s additional language still violated the First Amendment. The State has a compelling interest in protecting children from being exposed to disparagement between their parents.

However, as important as it is to protect a child from the emotional and psychological harm that might follow from one parent’s use of vulgar or disparaging words about the other, merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint.

Here, there was never a showing made linking communications by either parent to any grave, imminent harm to the child. As a toddler, the child was too young to be able to either read or to access social media. The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint.

The court did list remedies to deal with disparaging speech. For example, a couple can enter non-disparagement agreements voluntarily, a parent may have the option of seeking a harassment prevention order, or sue for intentional infliction of emotional distress or defamation.

Judges, who must determine the best interests of the child, can also make clear to the parties that their behavior, including any disparaging language, will be factored into any subsequent custody determinations.

The Reason article is here.