When parents separate, a family court usually decides parental custody and visitation rights by asking what is in the “best interests of the child.” Judges making such decisions consider parents’ speech and even their religion as being relevant to the child’s best interests.
Some courts have taken parents’ speech into account when determining custody
Some courts have concluded that learning certain ideologies is not in a child’s best interest and have limited or denied custody or visitation rights based partly on a parent’s racist speech; communist or pro-polygamist teaching; defense of homosexuality; and religious fundamentalism, acceptance of “nonmainstream” religions, religious intolerance, or failure to inculcate religion.
Other courts have concluded the same regarding nonideological speech, ordering parents to reveal their homosexuality to their children, to conceal their homosexuality, to abstain from swearing in front of their children, or to install Internet filters on their children’s computers.
Judges have barred one parent from saying bad things about the other parent, whether the bad things are simple badmouthing or ideological teachings; one parent, for example, was 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,” because the other parent was homosexual. Some courts have barred one parent from teaching religious views that contradict those taught by the other.
Orders about speech implicate First Amendment speech rights
These orders implicate the free speech clause of the First Amendment. This is clearest when the order is an injunction forbidding or compelling certain statements.
It is also the case when a court order reduces or eliminates a parent’s custody or visitation rights because of a parent’s likely speech. Just as civil liability or a tax based on the content of a person’s speech presumptively violates the First Amendment, the same must be true for the loss of parental rights based on the content of one’s speech.
Speech restrictions based on the often subjective “best interests of the child” standard may also implicate the First Amendment void-for-vagueness doctrine. The orders also presumptively violate the free exercise clause when they single out religious speech for restriction. They also presumptively violate the establishment clause when they favor one parent because that parent is more religious or more likely to teach the child religion.
Lower courts have considered religious freedom in child custody cases
The Supreme Court has not heard any cases involving the First Amendment and child custody. State appellate courts, however, have had such cases — usually under the religion clauses rather than the free speech clause — and have reached different results.
Some courts have ruled that parents’ speech or religious practice may not be restricted unless it is likely to cause imminent physical or psychological harm to children. Others have declined to impose such a harm requirement and have allowed trial courts to make decisions simply based on what they see as the child’s best interests.
Child custody cases are not categorically immune from constitutional scrutiny.
In Palmore v. Sidoti (1984), the Supreme Court expressly held that a custody decision based on one divorced parent’s having entered into an interracial marriage violates the equal protection clause of the Fourteenth Amendment even when the lower court finds that being raised in an interracial household could lead to a child being socially ostracized.
Likewise, a custody decision based on a parent’s speech or religious practice would at least presumptively violate the First Amendment.
Compelling interest of protecting child could overcome First Amendment issues
What is not clear is whether this presumption would be rebutted in light of a compelling interest in shielding children from speech that is against their best interests; parents forfeit some of their First Amendment rights by divorcing, and a court has an obligation to make the best child protective decision it can, even if it means considering factors that would be constitutionally immune from penalty outside the child custody context.
It is also possible that the best interests standard may generally be constitutionally inadequate where a parent’s speech (religious or otherwise) is involved, but may be adequate where the restrictions are aimed solely at protecting the other parent’s rights (for instance, when a court orders a parent not to engage in nonideological badmouthing of the other parent).
It is possible that the First Amendment requires at least a heightened showing of harm before a parent’s speech is restricted or compelled or before a parent’s speech is considered in deciding the parent’s rights. For instance, even if a parent’s speech may be restrained to prevent imminent harm to a child, a court might not be allowed to favor the more religious parent simply on the theory that in general a religious upbringing is more in a child’s best interests than a nonreligious one.
This article was originally published in 2009. Eugene Volokh is the Gary T. Schwartz Professor of Law at UCLA School of Law. He has taught First Amendment law for over 20 years, has written a First Amendment casebook and has written several dozen law review articles on the First Amendment. He has also argued over 30 First Amendment cases in state and federal appellate courts throughout the country.