9 First Amendment Truth Bombs for Family Court Judges

Many people don’t realize this but the source of your parental rights is the relationship you establish with your child. Another word for relationship is association. The First Amendment strongly protects close family associations as both intimate associations and as expressive associations. Many attorneys will try to tell you that the First Amendment only protects expressive association not intimate association. The Simple response is to ask the attorney how does one go about establishing an intimate association without actually giving and receiving expressions of intimacy. This is exactly how the Supreme Court has expressed this only with more words and more obtusely. However, the Supreme Court was not obtuse when declaring that, “We have emphasized that the First Amendment protects family relationships.” One can have expressive associations such as membership in a political party without the association having any intimate component to it. However, one cannot have an intimate association without expression. It is important to note that the right to association is not directly protected in the text of the First Amendment. However, the Court has explained that one cannot express oneself unless one associates with a listener, therefore the right of association is essential to the freedom of speech. The reciprocal is also true, one cannot listen to speech unless one associates with a speaker.

The Supreme Court has been explicit in this regard, holding specifically “the right to educate one’s children as one chooses is made applicable to the States by the force of the First and Fourteenth Amendments.” Education is the expression of and reception of facts and ideas. The right to free speech provides both the right to express oneself and the right to receive expression from others. Inherent in the intimate association between parent and child is the duty of parents to educate their children in a manner which preferably makes them productive citizens but at least to a degree that keeps them from becoming a burden on others. Inherent in this intimacy is both the right to educate your child and your child’s concomitant or reciprocal right to receive the education from you.

Your child’s right to receive education is important in family law because when a judge limits your access to your child, that judge not only limits your right to teach, he or she also limits the right of your child to receive that education. The Supreme Court has held that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.” By depriving your child of access to you, your judge is contracting the spectrum of knowledge available to your child. The simple fact that there are gender differences in the understanding and expressing of knowledge alone is sufficient to make these deprivations constitutionally significant. What is more powerful, is when you demonstrate to the judge that he or she is actually violating your child’s rights which is contrary to your child’s best interests.

In child custody disputes between fit parents, state judges routinely designate one fit parent as the "best parent" and demote the other to a "less-than-best parent," using standardless "best interest" discretion to drastically restrict the child's time with the disfavored parent. When a judge does this, the court is imposing an intentional, viewpoint-based intellectual and gender-specific knowledge deprivation that directly narrows what the child is permitted to hear, learn, and experience from that parent. Under The Reciprocal Rights Principle and the foundational rule of binding Supreme Court First Amendment precedent, children are "persons" under our Constitution possessed of fundamental rights that the State must respect. As reaffirmed in modern Supreme Court doctrine, minors are entitled to a significant measure of First Amendment protection, and the State possesses no "free-floating power to restrict the ideas to which children may be exposed" nor may state judges enforce what they think parents "ought to want." Applying established constitutional formulations on family privacy and the right to receive information directly to minors, children hold an independent constitutional claim against state officials who narrow the spectrum of available knowledge based on official disapproval. Depriving children of equal access to both fit parents visits an unconstitutional legal disability upon the child solely because of the parents' marital breakdown—a discriminatory practice condemned under the Equal Protection principles of Levy v. Louisiana, 391 U.S. 68, 70–72 (1968) and Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972).

The Supreme Court stated it this way, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” When your judge deprives your child of First Amendment rights by limiting the times, the places, and the manner in which you and your child can associate together, your judge violates your child’s First Amendment rights. When your judge does this based on his or her viewpoint regarding your child’s best interests but does not provide all the other protections that the First Amendment demands, then your judge is irreparably harming your child. With this knowledge, you can now effectively challenge your judge’s best interest determinations that result in less than 50/50 time and rights. How can your judge be acting in your child’s best interests if your judge is irreparably injuring your child?

The Free Exercise of Religion clause of the First Amendment protects your right not only to attend formal worship services with your child but also to pray with your child, to read bible stories with your child, to answer any religious questions your child may express and all the other forms in which parents and close family share their shared intimate beliefs regarding religion. one doesn’t have to accept those beliefs to benefit from sharing those beliefs. Many of my close family members are deeply conservatively religious. While I may not share all of their beliefs, I understand what they believe which strengthens our bonds. We have shared traditions and shared understandings of each other based on our sharing of those beliefs, even where they differ. That shared understanding is an essential element of the intimate association. Few other people share that common understanding to the same degree as close family members do. When your judge restricts your time with your child, your judge restricts and limits that shared religious understanding and bond between you and your child. Your judge is forever altering your child’s religious future with his or her custody order. Keep in mind that the First Amendment protects as religious belief your right NOT to believe any particular religion and the First Amendment equally protects your right to share the lack of religious belief with your child as a type of religious belief system. The First Amendment does NOT prefer religion over non-religion. It simply ejects government from any religious debate or religious control by mandating that on religion the government must be strictly neutral.

The Supreme Court has most recently reiterated this concept in a case related to how public unions use mandatory union dues. The Supreme Court makes it clear that affirmative rights such as the right to speak typically come with reciprocal rights such as the right not to speak or the right to have a particular religious belief and the right not to have a religious belief or the right to marry and the right not to marry but also the right to divorce. The Supreme Court expressed it in these terms, “We have held time and again that freedom of speech “includes both the right to speak freely and the right to refrain from speaking at all. Freedom of association plainly presupposes a freedom not to associate.” The Supreme Court speaks of the unions as associations established for specific purposes. When the union uses union dues to serve those specific purposes the speech enabled by those dues is not unlawful compelled speech. However, when the dues are used for communicating ideas that are not central to those specific purposes such as supporting political candidates, platforms, or ideas those dues are impermissibly used to compel speech. A person cannot be compelled to speak against one’s will nor be forced to pay for speech against one’s will, such as being compelled to pay a GAL to speak against your rights. This is important in child support as we will see.

Citizens United is famous for declaring that money is speech but it was far from the first Supreme Court to hold that money is speech and it isn’t the last. The public unions speech case just mentioned above came 8 years later. Why do we care about money as speech in family law? The answer is simple, child support. When you are ordered to pay child support you are literally being ordered to pay for someone else’s speech and education of your child. What are they saying to your child? What values are they teaching your child? People generally divorce when they realize that their values differ from each other. This almost guarantees that an ex with more time with the child and who is receiving child support is being paid by you to teach your child values you disagree with. The essential question is can your judge compel you to pay for educating your child on values with which you disagree?

Prior restraints are bad but they are even worse when they are based on the content of the speech being restrained. Your judge’s gag order limiting you from talking to your child about your court case is a content-based prior restraint because it specifically prohibits certain speech based on the content that is being expressed and because it singles out individuals for person-based restraints that must be presumed to be content-based. However, this gag order is not the special type of content-based prior restraint that is most limited by the First Amendment. Prior restraints that are content-based where the determining factor of the content is one’s viewpoint regarding that content are the most reviled forms of prior restraints. When your judge orders that you cannot share with your child that the family law system is a corrupt system run by corrupt judges, your judge is imposing a viewpoint-based prior restraint. Content-based prior restraints and especially viewpoint-based prior restraints are almost never allowed. Family law judges get away with issuing such prior restraints only because of the deep systemic corruption in family law. If more parents would challenge these prior restraints, the corruption would have to be stopped. It cannot survive when exposed for what it truly is.

Crucially, claims of harm may never be presumed. Under binding Supreme Court precedent governing evidentiary presumptions and constitutional limitations, the power to create presumptions is not a means of escape from constitutional restrictions. When judges issue gag orders or custody restraints claiming that discussing litigation is "harmful" to the child, the court is relying on standardless speculation rather than strict legal evidence. Under the Constitution, judicial intervention requires proof of a concrete, particularized injury (Lujan v. Defenders of Wildlife, 504 U.S. 555). A family court cannot flip the constitutional burden by presuming harm to justify gagging a fit parent or censoring parent-child communication.

The way that family law codes are defined today guarantees that every such plan is a prior restraint on First Amendment rights that is almost certainly unconstitutional. When the Parenting Plan is justified by your judge’s determination of your child’s best interests, that Parenting Plan is a viewpoint-based prior restraint that is certainly unconstitutional and that must be presumed to be unconstitutional until proven otherwise. What is “best?” Who is the “best” female vocalist this year? There is no possible way to define “best” because the term is always relative to the factors one considers important in defining “best.” The Supreme Court has held that a judge’s determination of a child’s best interest is nothing more than an opinion which cannot justify limitations on parental rights. An opinion is a viewpoint. Your judge’s viewpoint regarding your child’s best interests has no more legitimate impact on your parental rights than does your judge’s viewpoint on who the “best” female vocalist is this year.