I have an L.A. Times op-ed this morning about a fascinating parent-child speech case — one that to my knowledge no media outlet has yet discussed (probably because the facts were discussed in an unpublished opinion that likely no-one but the parties and I had read). Here are the opening paragraphs:

Meet Daniel P. and Allison B. and their children, Mujahid Daniel and Mujahid David, ages 13 and 11.... During their marriage, according to court documents, Daniel and Allison followed a "quasi-Muslim philosophy." They also "amassed a large quantity of weapons," and Daniel was imprisoned for illegal weapons possession and for making threats. Allison testified that Daniel abused her and that she went along with his actions only because she was afraid of him. The couple divorced in 1997, when Daniel was in prison.

Daniel, now out on parole, wants to see his children. Allison objects, based on Daniel's "violent felony conviction record ... domestic violence ... extremist views regarding religion, including ... jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are Mujahid." ("Mujahid" means a soldier fighting for Islam; "mujahedin" is the plural.)

In December, a New York appellate court held that Daniel should be allowed supervised visitation after his parole expires this summer. But the court also upheld, in the name of "the best interest of the children," the trial court's order that Daniel not discuss with the children "any issues pertaining to his religion." ...

In the rest of the op-ed, I discuss the First Amendment implications of such orders, and point out that similar speech restrictions can arise in a wide range of other cases, involving racist speech, anti-gay speech, pro-gay speech, the teaching of religious intolerance, decisions not to teach religion at all, and more. Last year, I wrote an NYU Law Review article (Parent-Child Speech and Child Custody Speech Restriction) on this general subject.

For those who are interested, I also report the opinions below:

[New York family court decision, Oct. 28, 2005:]

The Petitioner, DANIEL [P.] (hereinafter, “father” or “Petitioner”) having filed a petition, pursuant to Family Court Act, Article 6, for an order, inter alia, granting him “visitation” with the children, MUJAHID DANIEL [P.], born October 30, 1993; and MUJAHID DAVID [P.], born June 1, 1995 (hereinafter “Daniel” and “David” or “the children”); and the Respondent, ALLISON [B.] (hereinafter “mother” or “Respondent”) having opposed such petition; and these matters, having come on before me for a trial, and the Petitioner having appeared via telephone testimony and by his attorney, John Zenir; and the Respondent having appeared in person and by her attorney, Steven A. Meisner, and the Law Guardian, Gail Jacobs, Esq., having appeared on behalf of the children; and the parties having presented witnesses, and exhibits to this Court; and upon all of the prior proceedings and pleadings had herein; and the parties having consented to this matter being heard and determined by Special Referee Dorothy A. Phillips; the petition is decided as follows:

(Show text of opinions.)

FACTUAL BACKGROUND & PRIOR ORDER/JUDGMENT OF DIVORCE

The history of the relationship between the petitioner and respondent, and their conduct and beliefs, prior to their ultimate separation and divorce, may be considered “extreme” or non-conventional, especially in today’s, post “9-11” world. The petitioner has not seen his children since 1997, although he has maintained consistent contact with the children, through cards and letters and speaks with them regularly by telephone.

It is uncontroverted that the petitioner is a repeat felony offender, having been convicted of, among other things, making terrorist threats and weapons possession. In fact, both the petitioner and respondent testified that they amassed a large quantity of weapons during their marriage, which in turn, resulted in the petitioner’s most recent felony conviction for weapons possession. The petitioner was incarcerated at the time of the parties’ divorce and it is uncontroverted that his incarceration and current alleged inability to travel, is the direct result of his criminal conduct.

During their marriage, both parties followed a quasi Muslim philosophy, including the naming of the two children born during their marriage, Mujahid Daniel and Mujahid David[.]

The respondent testified that she was a victim of domestic violence during her marriage to the petitioner and that she engaged in those non-conventional activities with the petitioner due to her fear of the petitioner. At the time of their divorce, granted in accordance with the terms of an agreement between the parties, the petitioner was granted, on consent, visitation with the children as agreed to between the parties.

In accordance with the parties’ Stipulation, which was incorporated in their Judgment of Divorce, dated February 25th,1997, the terms of custody and visitation of the children were as follows:

[A] The Wife shall have custody of the Children during their respective minorities. The Husband shall have reasonable visitation rights with the Children, and the Wife shall cooperate with the Husband to enable him to effect such visitation at times convenient to the parties subject to the commitments of and plans for the Children. The parties shall consult with each other on all material matters with respect [to] the Children, including all matters relating to their health and education. If either of the Children shall require significant medical care, the Wife shall keep the Husband informed. Each of the parties agree to avoid involving the Children in any conflicts between the parties and not to disparage the other to the Children.

[B] The parties shall exert every reasonable effort to maintain unhampered contact between the Children and each of the parties, and to foster a feeling of affection between the Children and the other party. Neither party shall do anything which may estrange the Children from the other party, or injure the opinion of the Children as to the other, or which may hamper the free and natural development of the Children’s love and respect for both parents. The Children’s well-being, education and development shall be of paramount importance in the application of all provisions of this paragraph.

As the result of his last felony conviction, the petitioner was sentenced to a Federal Penitentiary in Pennsylvania. At the time of his release, he had a choice of locale for the purpose of service his time of supervised parole. The petitioner contends that until his complete of his parole, he was advised that he would not be permitted to leave the area of his parole.

The petitioner chose Hawaii, the land of his birth and where his father resides, a retired physician, even though he would not be near his children. The petitioner’s father also testified that upon his son’s release, he agreed he would provide familial support and assistance for his son’s parole in Hawaii. His restricted supervised parole ends in July, 2007.

The petitioner filed the instant petition to enforce the parties Judgment of Divorce, granting his visitation as agreed. At the time of the filing of the instant petition for visitation, the petitioner was released from the Federal Penitentiary and is currently on secured parole, unable to travel. The petitioner contends that insofar as he is on parole and unable to travel, the children should be permitted to come to his home for the purpose of effecting visitation and the respondent should pay for the expense of their travel.

The respondent contends that due to the petitioner’s violent felony conviction record, the domestic violence exhibited during the course of their marriage, his extremist views regarding religion, including his belief regarding Jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are MUJAHID, that visitation should be denied.

The respondent testified that she consented to petitioner having visitation with the children because she believed the petitioner would never exercise any visitation.

The respondent now seeks to thwart the petitioner’s visitation with his children, based on a “best interest” argument, and by raising issues that pre-date the parties’ Judgment of Divorce; or in the very least, is seeking to limit the petitioner’s visitation to supervised visitation only.

THE LAW

In deciding the issue of visitation, the courts must determine “what is for the best interest of the children”. Visitation with a noncustodial parent is presumed to be in the children’s best interest even when a noncustodial parent is incarcerated, which, by itself, is not enough to deny visitation (see, Matter of Davis. 232 AD2d 773 [2nd Dep’t 2000]).

“A noncustodial parent is entitled to meaningful visitation. Denial of that right is so drastic that it must be based on substantial evidence that visitation would be detrimental to the welfare of the child (see. Matter of MacEwen v MacEwen, 214 AD2d 572; Matter of Vanderholl v Vanderholl, 207 AD2d 494)” (Matter of Ronald Bradley v Wright. 260 AD2d 477).

FINDINGS & DECISION

While this Court agrees that the petitioner’s felony convictions, the history of domestic violence, and his attempts to prophetalize his beliefs to the children in letters and phone calls [while he was incarcerated] does not make him a candidate for untethered protracted unsupervised visitation; it does not rise the level to impose the drastic remedy of denying meaningful visitation to the father. Moreover, the children have a right to visit with their father, and the proof before this Court does not establish that it would not be in the children’s best interest to enforce that right. Notably, both the respondent and petitioner testified that the petitioner no longer attempts to discuss his beliefs with the children during his letters or telephone conversations with the children and the respondent herself no longer believes that it is necessary to monitor the children’s communication with their father. Finally, the children are mature young men who have expressed a desire to visit with their father.

Thus, the issue before the Court is what visitation would be in the children’s best interest, how such visitation should be arranged, whether the children should travel to Hawaii until the father’s supervised parole is completed in July, 2007; and where the children should stay during any visitation due to the fact that the petitioner has failed to establish that he has adequate living/sleeping arrangements to accommodate these children.

The children have not seen their father since 1997, and despite the fact that they speak with him via telephone and communicate with him by letters, he is still a stranger to these children and it is natural that these children would have a certain level of trepidation in visiting with their father for the first time since 1997, in a land far away from their familiar surroundings.

It is this Court’s judgment, after conducting an in camera of the children, that they are mature children, aware of the facts and circumstances of their father’s past, and the reason for their father’s confinement in Hawaii. They are also well traveled; and both they and their mother have a strong familial relationship with their paternal grandfather; [having traveled with the father’s family members in Europe as recently as the summer of 2005]; who lives in close proximity to the petitioner. During the trial, the paternal grandfather testified by telephone and declined the suggestion of counsel. regarding his acting as a supervisor for any visitation and articulated a well founded reason, i.e., that he would not want to be in a position of evaluating his son’s visitation with his children. He did, however, indicate that the children would be welcome to stay at his home, a large well-maintained home, with ample room for the children to stay during any travel to Hawaii.

Accordingly, commencing during the February, 2006 school recess period, the children shall have visitation with their father in Hawaii, the petitioner shall make all arrangements for the children’s travel; and the respondent shall make appropriate arrangements for their care and accommodations during their stay in Hawaii, e.g., with their paternal grandfather or a hotel with the respondent if she chooses to travel with the children.

Due to the fact that the children have not visited their father since 1997, the initial day-time visitation of up to four hours, shall be therapeutic visitation under the auspices of a certified therapist as selected and arranged by the parties and the Law Guardian; and thereafter, visitation shall continue on a day-to-day basis, the second day consisting of one hour of unsupervised visitation with the father, followed by one hour of therapeutic visitation; day three shall consist of two hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation; the fourth day shall consist of four hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation; and finally, all subsequent visitation shall consist of eight hours of unsupervised visitation with the father, followed by one hour of therapeutic visitation.

The petitioner/father’s failure to participate in any of the therapeutic portions of visitation shall be deemed a waiver of any subsequent visitation. The petitioner/father shall not discuss any issues pertaining to his religion or philosophy with respect to same, during any unsupervised visitation time with the children. The petitioner/father’s failure to comply with this specific prohibition shall be deemed a waiver of any subsequent visitation.

The cost and expense for all travel arrangements for the children and therapeutic intervention shall be at the sole expense of the petitioner/father; and the mother shall pay for all hotel accommodations for the children. If the respondent/mother chooses to accompany the children during their trip to Hawaii, then the respondent/mother shall bear the sole cost and expense of all of her travel arrangements as well as all of the costs and expenses for hotel accommodations for herself and the children; and there may such other visitation as agreed to between the parties.

Thereafter, the father shall have day-time visitation, eight hours of unsupervised followed by one hour of therapeutic visitation, for one week during the summer of 2006, and during the February, 2007 school recess period, the cost and expense for such visitation shall be in accordance with the allocation set forth above, plus any other visitation that the parties agree. Thereafter, upon completion of the petitioner/father’s parole, there shall be such other visitation as the parties agree.

This shall constitute the final decision and order of this Court.

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL FROM THIS ORDER MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER

TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER PERSONAL SERVICE BY A PARTY OR THE LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

[New York Appellate Decision, Dec. 12, 2005:]

In a child visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Nassau County (Phillips, Ct. Atty. Ref.), dated November 18, 2005, as, after a hearing, awarded the father unsupervised visitation with the subject children in the State of Hawaii, and the father cross-appeals, as limited by his brief, from so much of the same order as directed that he pay for the subject children's travel and lodging expenses in order to visit him in Hawaii, prohibited him from discussing any issues pertaining to his religion or philosophy with the children during the visitation, and directed therapeutic visitation in addition to the unsupervised visitation.

ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provisions thereof awarding the father unsupervised visitation with the subject children in the State of Hawaii and substituting therefor provisions awarding the father day visitation supervised by an individual chosen by the parties and the Law Guardian for seven hours within the State of New York to begin during the children's summer recess in July 2007, and thereafter day visitation supervised by an individual chosen by the parties and the Law Guardian for seven hours within the State of New York to begin during the children's winter school recess in February 2008, with each visit to be followed by one hour of therapeutic visitation with a certified therapist chosen by the parties and the Law Guardian; as so modified, the order is affirmed insofar as appealed and cross appealed from, without costs or disbursements.

The father commenced the instant visitation proceeding to modify an order issued by the District Court of the Third Judicial District (hereinafter the Wyoming District Court) within the state of Wyoming in May 2001 which, after a hearing, inter alia, denied him visitation with the subject children. The father sought an order granting him, inter alia, unsupervised visitation with the subject children in the State of Hawaii.

Initially, we note that the father met his burden of demonstrating a subsequent change in circumstances warranting a hearing (see Family Court Act § 652[b]). The father demonstrated that, following the previous order issued by the Wyoming District Court, he was released from his incarceration at a federal penitentiary and was residing at a permanent residence within the State of Hawaii. Further, it was undisputed that the children wished to visit with the father.

The hearing testimony established that the father had not visited with the subject children since 1997 due in part to his incarceration. Upon his release from the federal penitentiary, the father was, in effect, paroled to the State of Hawaii and prohibited from leaving the State until July 2007. The evidence further demonstrated that the mother and the subject children resided together in the State of New York. After the hearing, the Family Court, inter alia, awarded the father unsupervised visitation with the subject children in the State of Hawaii.

Under the circumstances, the Family Court improvidently exercised its discretion in awarding the father unsupervised visitation with the subject children in Hawaii. A parent's supervised visitation with a child is required only where it is shown that unsupervised visitation would be detrimental to the child (see Matter of Anaya v Hundley, 12 AD3d 594, 595). Given the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172), including the age of the children, the father's extensive criminal background, his history of domestic violence committed against the mother, and the cost and distance of travel, unsupervised visitation with the father in Hawaii is not in the children's best interests (see e.g. Matter of Anaya v Hundley, supra; Matter of Simpson v Simrell, 296 AD2d 621). Thus, we award the father initially only supervised day visitation with the children in the State of New York.

Upon a balancing of the competing interests, the Family Court providently exercised its discretion in restricting the father from discussing any issues pertaining to his religion or philosophy with the subject children, particularly where the Law Guardian supported that restriction (compare Stephanie L. Benjamin L., 158 Misc 2d 665, 667). Further, the Family Court properly directed that the father and the children engage in therapeutic visitation.

In light of our determination, we do not reach the father's remaining contention.

FLORIO, J.P., SCHMIDT, SANTUCCI and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

(Hide text of opinions.)

My post on the jihadist father case led to various responses about what the right result should be, and more broadly about what the right First Amendment rule should be. Let me ask you folks this: Keep in mind the following (real) cases -- for citations and more details, see my NYU Law Review article on the subject -- and think about what First Amendment rule you would advocate, not just for the jihadist case but for those cases as well. Would it be "judges may impose whatever speech restrictions they think are in the best interests of the child, and allocate custody in whatever way they think best serves the interest of the child" (pretty much the current family law rule)? Would it be something else?

I'm not just asking which conceptual lines can be drawn; I'm asking which rule you think is likely to operate in our legal system, in which judges will often have different views from you, and will often apply fuzzy rules in ways differently than you would. (Of course, some judges will evade even clear rules, but let's assume that rules have at least some power to constrain judges in some cases.)

Here is the test suite:

1. A parent is denied custody based partly on his “not regularly attend[ing] church and present[ing] no evidence demonstrating any willingness or capacity to attend to religion with [his children],” or having a “lack of religious observation.” Another parent is given custody but only on condition that he “will agree to present a plan to the Court of how [he] is going to commence providing some sort of spiritual opportunity for the [children] to learn about God while in [his] custody.” A court orders a mother to take her child to church each week, reasoning that “it is certainly to the best interests of [the child] to receive regular and systematic spiritual training.” Another court does the same, partly on the grounds that weekly church attendance, rather than just the once-every-two-weeks attendance that the child would have had if he went only with the other parent, provides superior “moral instruction.”

2. Parents have custody rights limited or denied based on racist speech.

3. ... based on advocacy of Communism (during the 1930s and 1950s).

4. ... based on advocacy of polygamy (we're back to today, as we are on all the examples that don't have dates labeled).

5. ... based on their defense of the propriety of homosexuality.

6. ... based on their advocacy of (or inadequate condemnation of) nonmarital sex.

7. ... based on their teaching of fundamentalism.

8. ... based on their teaching of “non-mainstream” religions.

9. ... based on their teaching of religious intolerance.

10. ... based on their exposing their children to R-rated movies.

11. ... based on their allowing their children unfiltered Internet access.

12. ... based on their exposing their children to photos of men in women’s clothing.

13. ... based on their exposing their children to music with vulgar sexual content.

14. Parents are ordered not to say bad things about the other parent generally.

15. When the other parent is homosexual, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic."

16. When the parents are of different religions, a parent is ordered not to say that people who don't share the speaker's religion are damned to hell.

17. When the other parent is a racist, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered harshly condemning of racists" (this is the one pure hypothetical in the whole list).

18. When the parents are of different religions, a court orders “that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise."

It's a long list, so don't feel obligated to discuss in detail each item -- but think about which rule you think would reach the right results not just in one case but in the whole range of cases.

Hear Scott Simon's mellifluous voice, plus my voice, here. It's about 4.5 minutes, which is an eternity in national radio time; I was delighted that NPR was interested in the story.

My op-ed on the jihadist father gag order was rerun in "The Peninsula On-line." Question (no fair googling): Which peninsula? Hint below.

I've been quite pleased by the mainstream media reception of my Parent-Child Jihadist Speech op-ed; it ran originally in the L.A. Times, but it's been reprinted in the Atlanta and St. Petersburg newspapers, as well as a couple of others (including this one); NPR Weekend Edition and a local NPR affiliate did something on this, too, as did a Philadelphia radio station and the conservative syndicated Lars Larson radio show.

On the other hand, I had expected there'd be more attention from various blogs and radio programs that often cover radical Islam and the law. I figured the case that my story had uncovered had it all: The First Amendment; jihadism; parental rights; child welfare. Yet I've had much less original posts yield much more interest among blogs and radio programs, especially conservative ones.

I'm not trying either to brag or to complain here; I'm pleased with the attention the story has gotten, and while I think it's interesting, I never expected it to cause a huge stir. Still, I wonder: Did I misjudge the likely interest? Did I just not publicize the story enough? Should I have taken heroic measures to keep Anna Nicole Smith alive for several more days? What can I do in the future to try to draw more attention to such matters? I'd love to hear any speculation or advice that people might have.