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Why Parents in Split Families Shouldn't Lose Their First Amendment Rights To Talk to Their Children:

Many defenses of child custody decisions based on parents' speech and religion acknowledge that parents in intact families have broad rights to speak to their children free of government restraint (see PDF pages 43-53 of this article), but argue that in split families this is different. I think this is wrong, as I argued at length in my NYU article; but I thought I'd excerpt some of my arguments here, in a somewhat abridged form.

1. Surrender of Parental Rights: Some argue that parents in split families lose some of their constitutional rights: "In matters of custody, the family unit has already been dissolved, and that dissolution is accompanied by a weakening of the shield constructed against state intervention. A parent cannot flaunt the banner of religious freedom and family sanctity when he himself has abrogated that unity."

Each parent's right to live with a child, and to control the child's upbringing, must indeed yield in some measure when the parents split up. The child can't physically be in two separate households at once; and if the parents are hostile enough to each other, they can't make joint decisions about the child's life.

But it doesn't follow that parents' First Amendment rights must likewise yield. Parents' individual rights to speak to their children (and to practice their religions by speaking to them) can still be fully exercised after the parents break up. The parent may no longer be able to rely on the sanctity of the family as a unit, but he may rely on the sanctity of his own constitutional rights. The government must intervene to some extent when a family breaks up, but there's no inherent reason that it must intervene in the parents' speech.

Nor has the parent's conduct somehow waived the right. First, child custody speech restrictions may be imposed on a parent even when the family's unity was abrogated by the other parent: The law here doesn't distinguish the leaving parent from the one who gets left.

Second, even when a parent seeks the divorce, it hardly follows that the government may require the parent to waive his constitutional rights as a condition of getting that divorce. That's true for First Amendment rights generally (or for that matter Fourth Amendment or other rights); it's presumptively equally true for First Amendment rights to speak to one's children.

2. Best Interests Above All: Child custody speech restrictions also can't be justified simply by arguing that protecting a child's best interests is so important that it trumps any First Amendment rights.

Parent-child speech is protected in intact families even when it may undermine the child's best interests. And this is so even though parental teaching of bad ideologies in intact families can sometimes be more harmful than the same speech in split families: If the parents are divorced, one parent might counteract whatever harmful ideology the other parent is teaching, or at least each parent's authority might be decreased because the parent has less time with the child. But if the parents are still together, they're more likely to teach the child the same message; the child will be even more within their ideological control; and the child's best interests would be even more hurt by the bad teachings.

Thus, proponents of child custody speech restrictions must say something more: They need to explain why the same interest that is inadequate to restrict speech in intact families becomes adequate when the family is split.

3. Need to Decide Accurately: One possible "something more" is that in split families, the judge has been called in, and some custody decision must be made. The court should therefore make the most accurate decision it can, the argument would go, by considering all the relevant evidence, including the parent's likely future speech.

rlb:
I'm fairly busy at the moment so you'll forgive me if I don't read the linked article (or even most of this post) but I have to take issue with the very first sentence:

Many defenses of child custody decisions based on parents' speech and religion acknowledge that parents in intact families have broad rights to speak to their children free of government restraint (see PDF pages 43-53 of this article), but argue that in split families this is different.


The problem with your premise is that in an intact family, there's only "free speech" with the kids as long as the family stays intact. Once the divorce is before the chancellor, you can bet that your indoctrinating the kid with racism, homosexuality, and satanism while the family was "intact" is going to be an issue, one that'll probably cost you custody from the get go.

So, if I had to pick between your justifications I'd go with the other parent's consent.
8.2.2007 8:22pm
loki13 (mail):
Prof. Volokh,

I apologize in advance for not reading your full article, but I am under a time crunch. I only wish to share the following insight that I learned during a summer experience that had a heavy family law component:

In cases of divorce (or dissolution, depending on your jx), the fight is over the child. The parents cannot agree on custody, so they ask the court to make the determination. The parents then fight over various issues related to how the child should be raised, and what are appropriate topics for the child to hear. While the idea that the custodial parent has the full responsibility to parent as they see fit when they have the physical custody of the child is common, it is often the case that when one parent is doing something that is directly detrimental to the other parent's ability to, well, parent, the court is often asked to step in and must make an order.

From language in Troxel v. Granville, we know that the liberty interest that a parent has in their child's upbringing is paramount. This can be in tension with the parents First Amendment rights. Short of denying a 'bad actor' parent custody completely, a Court may be within its proper sphere to enter an order curtailing their speech to the child in certain matters.

I'm not sure if that is clear... Let me give a concrete example. Suppose you have a jewish mother, and a (newly) fundamentalist Christian father. The mother has primary custody, while the father has every other weekend, holidays, etc. The father harrangues the young (5 yr. old) child on a regular basis that her mother is going to hell, and so is she if she listens to her mother, and so our her relatives on her mothers side.

While the father is free to espouse these views on the radio, or to the mother privately, or in any other way, such views are inappropriate when expressed to a child of that age (not in their best interest). The Court can either curtail his visitation to supervised only, or curtail his speech about that topic. Curtailing his visitation curtails his ability to be with his daughter, and is a more substantial infringement on his liberty interest than the curtailment of his First Amendment rights.

In short, once the Court gets involved (with the child) the parents are surrendering some of their rights (with regards to the child). That may be their liberty interest in the custody and upbringing of the child, or it might be their First Am. rights to speak freely to the child. So be it. Such is the fun of divorce.
8.2.2007 8:43pm
Roger Schlafly (www):
[loki13] Suppose you have a jewish mother, and a (newly) fundamentalist Christian father. The mother has primary custody, ... The father harrangues the young (5 yr. old) child ...
This could happen in an intact family also, and the court has no authority to intervene. The court should just let the parents have equal legal custody, and ignore the possibility that the child might hear differing religious opinions.
In short, once the Court gets involved (with the child) the parents are surrendering some of their rights (with regards to the child).
No, the parents are having their fundamental liberty interest taken from them by meddlesome family court judges. These judges almost always make things worse.
8.2.2007 10:12pm
ReaderY:
The overconstitutionalization of family law as being highly problematic. Society, and courts, have to do with concrete questions of how to bring up children. The idea that one parent should have primary custody, wise or foolish, is an idea of some standing. To overturn an approach learned from experience on the basis of abstract principles (both parents have equal rights to talk to children ==> parents must have joint custody to exercise these rights) is to substitute experience for a theory that may merely be wishful thinking.

The law of the child is not the law of the market; here the law speaks of duties, not rights. A child not a thing or a piece of property to be aportioned parents based on their claims to rights to it. A child is a human being; when the family unit breaks down, apportionment is to be based on the child's welfare.

I may strongly disagree with people's beliefs about what is best for children, but the fact that they are doing what they genuinely think is best for the children matters to me, even when I disagree. Solomon was very wise when he said in place the principle that those who are most concerned about the child's welfare, not those most concerned about the parents' rights, should prevail. To depart from that core societal understanding is to depart from wisdom. The First Amendment provides no basis for doing so.
8.2.2007 10:40pm
Roger Schlafly (www):
Solomon was very wise when he said in place the principle that those who are most concerned about the child's welfare, not those most concerned about the parents' rights, should prevail.
It is parents who are most concerned about the child's welfare, not the judges, lawyers, shrinks, or social workers. Both parents. When a judge tells a parent how to rear a child, it is nearly always to the detriment of the child.
8.2.2007 10:50pm
A. Zarkov (mail):
"The child can't physically be in two separate households at once…"

That's true, but the child can rotate between parents on a weekly, biweekly or monthly schedule. This will work so long as the parents do not live too far apart. If one of the parents wants to move away to make rotation impractical, then that parent should be the one to have less contact.

Each parent (within reason) should be free to tell the child whatever he wants because it won't make much of a difference. Children are not so fragile or malleable that it's crucial who has majority physical custody.
8.2.2007 11:27pm
Dave Hardy (mail) (www):
Considering that, in making custody determinations, the court must inevitably do something that would otherwise be a gross imposition on freedom of association, the impairment of free speech here seems rather modest in comparson.

Perhaps here the maxim that "in times of war, the laws are silent" comes into play...
8.3.2007 12:03am
Dave Hardy (mail) (www):
Each parent (within reason) should be free to tell the child whatever he wants because it won't make much of a difference. Children are not so fragile or malleable that it's crucial who has majority physical custody.

I've known some situations, with small kids, where one divorcing parent decides to use them as weapons, and subjects them to nonstop indoctrination on how the other parent is evil, doesn't care for them, is shafting them, etc., etc.. It can get VERY ugly. I really don't think a kid should be subjected to that, any more than they should be roughed up physically.
8.3.2007 12:06am
PatHMV (mail) (www):
If one parent spends substantial time condemning the other parent, to the child, for almost any reason, I think that by itself should be sufficient reason to deny the condemning parent physical custody, whether the condemnation is based on racial, speech, moral, sexual, religious, or any other grounds. In such case, it's the fact of the condemnation that is being acted upon, not its root cause. If parents of different religions split, and the Christian parent actively encourages the child to hate or despise the Muslim parent for being a heathen condemned to hell, that's a sign that the best interests of the child lie with being raised by the Muslim parent who doesn't teach the child to despise the Christian parent. But if it's the Muslim parent teaching the child to despise the Christian parent as an infidel or apostate who really ought to be stoned to death, then the Christian parent is probably where the best interests of the child lie.

My on-going extreme frustration with these discussions is this assumption that those of us who would allow consideration of race, religion, and general morality by the judges are saying that any one of those factors should be controlling in all circumstances. I am making no such point. As in my example, many other factors come into play, and indeed it would be impossible to determine the child's "best interests" without consideration of a great many factors. I only argue that such factors may be validly considered in the mix.
8.3.2007 12:20am
A. Zarkov (mail):
"I've known some situations, with small kids, where one divorcing parent decides to use them as weapons, and subjects them to nonstop indoctrination on how the other parent is evil, …"

That kind of behavior certainly happens and it's called the parental alienation syndrome. While such indoctrination can cause short-term changes in the relationship between the child and the alienated parent, I doubt if it lasts. In any case, it's another argument for rotating custody. Should such behavior become extreme it could become a form a psychological abuse.
8.3.2007 1:24am
unhyphenatedconservative (mail):
Roger,

Are you a family law practitioner or otherwise in the field? You make lots of sweeping statements but don't give a context of your experience to help us evaluate them.

Zarkov,

Alienation is more than a short term problem. It can get really ugly, especially if both parents are pieces of work. But its the kid(s) that suffer worst.
8.3.2007 2:22am
Daryl Herbert (www):
The point of letting people get married is because private individuals can raise children cheaper than if the government tried to do it all through orphanages and boarding schools. The trade off is that the government lets parents teach their children any crazy stuff they want (Scientology, Young Earth Creationism, fear of normal levels of electro-magnetic radiation, vegetarianism, etc.)

Divorce screws that all up. The only thing the government can try to do with a divorce is salvage the situation as best as possible. It does this by imposing child support payments (it's cheaper to force a man to work than to supply payments to the woman directly from the government).

Since the government is now getting the money by force (threatening jail for "deadbeat dads") instead of suasion (we'll let you raise your kids how you want so long as you stay within certain limits), the government has no more incentive to let the parent teach the kid crazy stuff. No. Now the government wants the kid to be taught mainstream, tolerant, inoffensive values to maximize the kid's future economic value to the country. Racism causes problems, so that's right out.

As for homophobia or atheism, those aren't such a big deal either way. So it's up to the judge. Whatever values the judge wants the kid to have, that's what it's going to be.

Great country, huh?

Of course, our system is better than any alternative that I know of.
8.3.2007 4:17am
A. Zarkov (mail):
"Alienation is more than a short term problem. It can get really ugly, especially if both parents are pieces of work. But it's the kid(s) that suffer worst."

Where is the evidence that it's a long-term problem? I don't know that it's the kids that suffer the most. Being a father in the American divorce system is like being a "negro" in the Jim Crow days. This is the price they pay for passing the 19th Amendment and being so passive when it comes to family matters.
8.3.2007 7:03am
loki13 (mail):

It is parents who are most concerned about the child's welfare, not the judges, lawyers, shrinks, or social workers. Both parents. When a judge tells a parent how to rear a child, it is nearly always to the detriment of the child.


Roger,
I suggest going to your local court house and viewing some actual, real family law. Specifically juvenile detention, dependency, and disputed divorce proceedings involving child custody (if in open court).
This may be shocking to you, but the government doesn't want to get involved in families, or in bringing up children. It is only when the parents, the extended family, an the community have failed that the government steps in (dependency) or when two parents are at such loggerheads that they refuse to agree to anything and force the court to make decisions for them (divorce) that the court steps in.
8.3.2007 10:04am
Stacy (mail):
As a father going through a (sofar) amicable negotiation over child support and custody, I have a great interest in this issue. My proposed parenting agreement provides wide latitude to us both in exposing our daughter to our individual religious, political etc. viewpoints, but specifically proscribes badmouthing the other parent, asking the child what the other parent is up to, etc.

This is apparently not the norm, but strikes me as a much better solution than banning certain speech without any explicit reference to how such speech is supposed to harm the child. Some of the commenters are conflating these two issues, and they seem separate to me.
8.3.2007 11:16am
loki13 (mail):
Stacy,

While I hope your situation continues to be amicable, not all divorces are. High-conflict divorces (or, as lawyers call them, 'fee generators') involving children have become such a problem that many states have allowed for special positions called 'parenting coordinators' to be designated by the court to deal with these situations.

As far as the universalization of your situation, though, most divorce decrees prohibit the badmouthing of the other parent. What happens if one parent is, say, a devout foreign moslem with a very restrictive view on a woman's place in the home, and the other parent is a more mainstream christian American, and they have split custody over raising a daughter? While the situation might be tenable, I am sure you understand how it can quickly deteriorate. And some divorces are *really* nasty.

I think the primary problem I see with Prof. Volokh's theme is that he is a 1st Am. absolutist. I tend to be as well, but he has a misapprehension of the intersection of ConLaw and FamLaw. Normally, the cure for 'bad' speech is more speech. But when the state is involved in awarding custody, and the receipient of the 'bad' speech is a child, the cure might not be more speech, since the child in incapable of making rational choices between the two viewpoints.

You wrote that the posters are conflating the issue of free speech (informing the child of political or religious viewpoints) with harming the child. The Courts I have seen operate do not get involved unless the speech is harming the child- for example, one parent telling the child that the other parent will burn in hell because of their religion.
8.3.2007 1:17pm
Roger Schlafly (www):
[loki13] I suggest going to your local court house ... but the government doesn't want to get involved in families, or in bringing up children.
I have. I have seen the family court get involved in all sorts of issues that would be better left to the parents. It is just not true that the court only intervenes when the parents have failed. It only takes one party to bring a motion, and then the court intervenes. When it intervenes, it commonly looks at all sorts of subjective factors with which it is incompetent to cope.
8.3.2007 1:37pm
loki13 (mail):

It only takes one party to bring a motion, and then the court intervenes.


That, of course, means the parties are not in agreement. If they were, one party would not be filing the motion (unless it is a joint motion for modification).

Here's the deal-
a. If the parties don't get divorced, the court doesn't get involved.
b. If the parties agree to the terms of the divorce, the court doesn't get involved.

So, you have a dispute between two parties. The court is the netural arbitrator. A decision must be made.

That's how family court works. Don't like it?
Get rid of divorce. I wouldn't run on that platform, though.
8.3.2007 2:49pm
Roger Schlafly (www):
Loki13, I am not opposing divorce. Even if there were no divorce, parents could disagree about religious upbringings for their kids.
You say that one party can bring a motion, and "A decision must be made." But it is just not true that the court must decide on a religious preference for a child. It is wrong, harmful, and unconstitutional for a court to make such as decision, as Eugene argues persuasively. The court can refuse to intervene by simply dismissing the motion.
8.3.2007 4:41pm
harmon:
It seems to me that in determing what latitude divorcing parents should have in speaking to their children, some consideration should be given to what latitude strangers to the family have in speaking to the children, and what rights parents have in responding to such speech. Don't parents have the right to control - indeed, prevent - stranger's speech when it is directed at their child?

To some extent, parents who divorce put themselves into the position of strangers, and the court steps in, in loco parentis. The court accedes to the rights previously held by the parents, and can exercise the parental rights. Those parental rights concerning speech from strangers are not themselves limited by the Constitution. Isn't it fair to say that the court can exercise the parental rights against the parents, now strangers to the family, at least to some degree?
8.3.2007 6:05pm
loki13 (mail):
Roger,

Parents can disagree, and both can inculcate their religious beliefs and other worldviews into the child.

Unfortunately, in some divorces, one parents goes past this point, and uses their religion to denigrate the other parent. Sometimes it a part of the parent's professed beliefs.

Do give you the difference I am discussing:
If one parent was a fundamentalist Christian, it would be acceptable to expose their child to that worldview.
If the parent used that belief system to constantly denigrate the other parent (your mom is going to hell because she doesn't believe in our lord jesus Christ!) then the a Court may, and should, entertain the motion.

If you need further clarification, please examine the difference between parental rights, which have priority, and best interest of the child, which is a countervailing factor.

Family law is a complicated area that has been built up over years. If you are truly interested in the subject (as opposed to pontificating) I recommend watching several days of dependency cases, followed by some readings (perhaps in therapeutic jurisprudence).
8.3.2007 7:30pm
Roger Schlafly (www):
Loki13, I have seen many family court cases, and watched judges intervene. Nearly every time, the judicial intervention has been to the detriment of the child. Even those who advocate the interventions cannot produce any studies showing that policies do any good.
8.4.2007 6:28pm