Tag: constitution grandparent rights

Grandparent Custody Goes to Federal Court

A rare grandparent custody and timesharing case ends up in a federal court after the child in question filed a temporary restraining order to prevent county child services from sending him to Florida to live with a father he claims he’s never met.

Grandparent Custody

The Ruckus in Columbus

“John Doe” is a thirteen-year-old boy in the temporary custody of Franklin County Children Services. He had been living with his mother in Ohio, but Children Services suspected that he was being abused or neglected. So, Children Services filed a case in Ohio state court to have Doe removed from his mother’s home. The court ordered Doe removed, and it is now presiding over the resulting custody dispute.

During the proceedings, the state court gave Children Services custody of Doe. Children Services then placed him with his maternal grandmother, who he has had a relationship with for much of his life and who also lives in central Ohio. A Guardian Ad Litem, who filed a report, recommend placement with his grandmother.

The child claims he has had no contact with his father from the time he has a baby until after the case was filed, that his father has a criminal record and has two family members who died from drug overdoses. He has expressed fear of his safety if made to live with his father, as well as fear of traveling to Florida at this time during the COVID-19 pandemic, and wishes to remain with his grandmother.

However, Child Services decided the child should be put on a plane to live permanently with his father in Florida, for reasons unknown to him, with whom, as best he can recall, he has not had a relationship for his entire life.

The child then filed a complaint in the U.S. District Court, and sought a temporary restraining order (a TRO) claiming he was denied procedural due process and first amendment retaliation claims. The trial court granted his motion.

Children Services appealed to the 6th Circuit Court of Appeals and moved to stay the injunction pending the appeal.

Florida Grandparent Visitation

I have written extensively on grandparent visitation in Florida. In early common law, there was never a right to visitation by non-parents, and Florida has clung to that tradition. That is ironic, as a lot of elderly voters reside in Florida, and politicians have been trying to create visitation rights to grandparent voters here.

Beginning in 1978, the Florida legislature started making changes to the Florida Statutes that granted enforceable rights to visit their grandchildren.

The Florida Supreme Court built a massive wall blocking Florida grandparent visitation rights, explaining that parenting is protected by the right to privacy, a fundamental right, and any intrusion upon that right must be justified by a compelling state interest. In Florida, that compelling state interest was harm to the child:

“[W]e hold that the [s]tate may not intrude upon the parents’ fundamental right to raise their children except in cases where the child is threatened with harm.”

Recently, the Florida Supreme Court held that under the federal Parental Kidnapping Prevention Act any custody determination or visitation determination – including grandparent rights  – are protected and enforceable under the PKPA. And, to the extent that the PKPA conflicts with Florida law, the PKPA controls under the supremacy clause of the U.S. Constitution because it is a federal law.

The Buckeye Way

The Sixth Circuit rejected Children Services’ arguments that the district court should have abstained in favor of state proceedings:

Children Services filed the case to remove Doe from a potentially abusive home, and “the temporary removal of a child in a child-abuse context is … in aid of and closely related to criminal statutes.”

But removal proceedings are not at all “akin to criminal prosecution” as far as the child is concerned. And here, it is the child who has filed the federal lawsuit. That difference matters, because the Court has described proceedings in this second category as those that are “characteristically initiated to sanction the federal plaintiff.”

That does not describe this case, where the federal plaintiff is not an abusive parent, but a child. In the absence of full and thorough briefing, we will not broadly construe the Younger categories to apply to this different situation—especially given the Court’s instruction that Younger “extends to the three ‘exceptional circumstances’ [it has identified], but no further.”

Another argument by the agency was that under the Rooker-Feldman doctrine federal district courts lack jurisdiction to review state court judgments, but the court held it has “no application to judicial review of executive action, including determinations made by a state administrative agency.”

The court found that the child was not challenging a state court judgment; he was challenging the decision of Children Services, an agency of Franklin County, Ohio.

The court also rejected Children Services’ argument that it should get a stay because it’s likely to prevail on the merits of its appeal:

The states’ interest in resolving child-custody disputes is exceptionally strong, and federal court involvement in custody proceedings will almost always be inappropriate.

Finally, the court cautioned all district courts against entangling themselves in this area of traditional state concern.

The 6th Cir. 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.

 

Child Custody and the Constitution and Some Good Coronavirus Information

With state and local officials entering shelter in place orders, many parents feel they are being deprived of their constitutional rights to child custody. What are a parent’s constitutional rights during a global emergency? There’s also some good coronavirus information.

Constituion Child Custody

There is no instruction book for a pandemic

Happy belated Easter to everyone . . . except residents of Louisville, Kentucky! The home of Muhammad Ali, the Kentucky Derby, and Kentucky Fried Chicken is in the news. That’s because on Holy Thursday, Louisville’s mayor, Greg Fischer, criminalized the communal celebration of Easter.

Our nation faces a public health emergency caused by the exponential spread of COVID-19. This has led many state and local officials to order increasingly tighter restrictions to promote social distancing and prevent further spread of COVID-19.

Can the state go too far? One federal court thinks so. Last week Louisville’s mayor said, it was “with a heavy heart” that he was banning religious services, even if congregants remain in their cars during the service. A Louisville church then filed an emergency motion in federal court to enjoin the mayor, and won.

The mayor noted that it’s not really practical or safe to accommodate drive-up church services taking place but drive-through liquor stores are A-OK!

Notwithstanding the exemptions of some drive-through places, on Holy Thursday, the Mayor threatened church members and pastors if they hold a drive-in Easter service.

The federal judge, noting American history on religious bigotry, said the pilgrims fled religious persecution, slave owners flogged slaves for attending prayer meetings, mobs drove the Latter-Day Saints to Utah; hatred against Catholics motivated the Blaine Amendment, and Harvard University created a quota system to limit Jewish students.

The judge then found the Mayor’s decision to be stunning and “beyond all reason,” unconstitutional.

Florida Child Custody and the Constitution

Like religions, the constitution protects parental rights too. I have written about the intersection of the constitution and marital law before. The United States Supreme Court has concluded that freedom of personal choice in matters of family life is a fundamental liberty interest protected by the Fourteenth Amendment.

Florida courts have long recognized this fundamental parental right. The basic proposition is that parents have a legal right to enjoy the custody, fellowship and companionship of their offspring. This is a rule older than the common law itself.

But the parents’ rights are not absolute, as the state has parens patriae authority to ensure that children receive reasonable medical treatment which is necessary for the preservation of life.

So, in Florida the ultimate welfare of the child itself is controlling. While the parent’s interest in maintaining parental ties is essential, the child’s entitlement to an environment free of harm, physical and emotional violence at the hands of parents and caretakers and for medical treatment necessary for the preservation of life.

Because Florida has a compelling interest in protecting all its citizens—especially its youth—against the clear threat of abuse, neglect and death, the constitutional rights can give way.

Kentucky Fried Liberty

Back in Louisville, the court found the city order was not “neutral” between religious and non-religious conduct because it targeted religious worship by prohibiting drive-in church services, but not drive-through liquor stores.

The court noted that the city was pursuing a compelling interest of the highest order through its efforts to contain the current pandemic, but its actions were not even close to being “narrowly tailored to advance that interest.

The court also found that the church was committed to practicing social distancing in accordance with CDC guidelines. Cars will park six feet apart and all congregants will remain in their cars with windows no more than half open for the entirety of the service.” Its pastor and a videographer will be the only people outside cars, and they will be at a distance from the cars.

There is no instruction book for a pandemic. The threat evolves. Experts reevaluate. And government officials make the best calls they can, based on the best information they have. You may not agree with the court’s reasons, but the judge saw his role to explain, to teach, and to persuade.

Good Coronavirus News

Speaking of the constitution, to stem the spread of COVID-19, many cities have passed executive orders requiring people to cover their mouth and nose when going out.

Face masks (surgical or homemade) are now being required in public, such as when going to drive-through liquor stores. But do homemade masks work? The science with different types of masks is not conclusive, but this graphic is good information anyway:

COVID 19

In theory, all masks may prevent some sprays of virus-laden fluids from entering your nose and mouth (inward protection). They are also a reminder not to touch your face. And, if you’re sick, they may help keep some aerosols inside (outward protection), to protect people around you.

The U.S. District Court order is here.