In our role as advocates, advisors, and as counsel, Ciyou & Dixon, P.C. attorneys observe litigants in high-conflict, child custody litigation in some of their most trying times. And every seasoned family law judge, attorney, or child psychologist can relay a horror story where this pressure takes litigants beyond the bounds of civility, respect and basic human decency.
The key point and takeaway is that neither party wins, such acrimony really harms the child, and saddles all with baggage they carry throughout life. Indiana trial courts and appellate judges have had to address a few unfortunate cases where the myopic desire for the right to custody pits it against the right to freedom of speech.
This blog post explores these cases and where courts have drawn the line. In perhaps every type of dispute in life, there is “white noise” where unconsciously or subconsciously each side says or does things that express the merits of their position and angst and anger against the other. This is human nature and a natural self-defense mechanism, although it should be recognized and presumably avoided.
This “white noise” exists in every custody case. Most parents do a fairly good job of channeling this away from the children into more constructive means. In a handful of these cases, however, the communication goes well beyond unintended, accidental or occasional statements of disagreement with a court’s decisions or orders or anger or frustration with the other parent and his or her counsel.
Here the parents make no secret and revel in telling anyone and everyone–including the child and/or in his or her presence--they hate the other parent and about their disdain for the judge deciding his or her custody case and opposing counsel. So this raises the questions: “Is this free speech?” and “May trial courts prohibit a parent from making such statements in the future?”
Under Amendment I to the United States Constitution, it states:
“Congress shall make no law respecting an establishment of religion, or prohibiting free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for redress of grievances.”
While a legally complex analysis, a trial court may in some cases issue an order that is a prior restraint on free speech as it relates to child custody litigation. In other words, this First Amendment guarantee does not protect all statements as free speech. A “prior restraint” is merely an order that prohibits the parties from stating something in the future (“prior” to making it) under the penalty of contempt or other judicial remedy or punishment.
As a general rule, prior restraints are invalid. However, a prior restraint preventing parents from discussing their disputes with their children does not violate the right of free speech broadly because it does not restrain speech that is protected, making a contribution to the marketplace of ideas. Moreover, this reasonably furthers the child’s best interest in having a relationship with both parents.
On the other hand, Indiana’s appellate courts are constrained by, and carefully adhere to, the protections of the First Amendment; they have struck down certain prior restraints on speech in custody cases, particularly those that are aimed at the judicial system. Precisely, in noting paternity cases are confidential, which in itself, would prevent a party from criticizing the legal system to some extent, the Indiana Court of Appeals held:
“The [trial] court, as parens patriae, may prohibit the disclosure of the child’s name as well as the use of a pseudonym closely associated with the child’s name . . . [but] freedom of speech entitles Mother to name, herself, Father or other adults involved in the case, subject only to a tort action for defamation.”
Thus, even a simple, but acrimonious, child custody case may reach constitutional dimensions and limitations. As parents, members of the general public, and those of us in the legal system, we should remain cognizant that our constitutional freedoms, including the fundamental right to raise our children, remains always in a tenuous balance. Free speech comes at a price, and it is far from free. The legal, constitutional question is: “Where is the price too high?”
At Ciyou & Dixon, P.C., we hope this blog post helps you understand the proper interaction of child custody litigation and free speech. Information is power, and we as educated individuals, can use to use it for good or evil. Both a meaningful constitution and our children are essential ingredients to our future and way of life.
Are you are a parent involved in child custody litigation? Please remember this. We hope the information in this blog helps you filter every word you intend to make about the opposing party or legal system. But at the same time, if you are truly acting in your child’s best interests, make your voice heard. This is the hallmark of the legal system, and one all judges and lawyers respect.
This blog was written by Bryan L. Ciyou, an attorney at Ciyou & Dixon, P.C., Indianapolis, Indiana. Ciyou & Dixon, P.C. attorneys practice throughout the State of Indiana.
- 1. The right to freedom of speech is applicable to the States and citizens by the Fourteenth Amendment.
- 2. In re Paternity of G.R.G., 829 N.E.2d 114 (Ind.Ct.App.2005).
- 3. In re Paternity of K.D., 929 N.E.2d 863 (Ind.Ct.App.2010).