The First Amendment Right to Free Speech Applies to Child Custody Cases

The subject children in child custody cases have the First Amendment Right to Free Speech. The Pennsylvania Superior Court, in Rogowski v. Kirven, 291 A.3d 50 (2023), applied that right to a boilerplate provision that appears in many custody orders. Below is the subject provision:

“The parties shall not encourage the Child to refer to anyone other than the parties as Mother, Mom, Father, Dad, [et cetera.] In the event the Child refers to a party’s spouse or significant other in such a way, that party shall correct the Child.”

In Rogowski, the Mother did not and would not correct the Child when the Child referred to his stepfather as “dad” or “daddy.” The Father wanted the Mother to comply with the Order and correct the Child. The Superior Court found this restriction to be content-based because its purpose was to “limit the message that the Child conveyed through use of the terms ‘Mom’ or ‘Dad’ to denote a biological, familial relationship with the person rather than a non-biological, familial relationship as exists in the case of a step-parent.” Id. at 61. Because the restriction was content-based, the Court applied strict scrutiny, which is the toughest test for the government to satisfy.

The Trial Court imposed the restriction because it thought it was in the “best interest of the Child” and “in an attempt to further Pennsylvania’s interest in protecting the Child’s mental and psychological well-being by maintaining and strengthening the strained relationship between Child and Father.” Id. at 62. However, although the trial court does have the power to protect the Child’s mental and psychological well-being, the Superior Court pointed out that there was no evidence that the Child referring to his stepfather as “dad” or “daddy” had caused or will cause harm to the Child. Thus, the Superior Court invalidated the provision.

If you have questions about child custody, please do not hesitate to contact Scaringi Law at 717-657-7770.


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