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81 N.Y.U. L. Rev. 631 (2006)
Parent-Child Speech and Child Custody Speech Restrictions

handle is hein.journals/nylr81 and id is 647 raw text is: PARENT-CHILD SPEECH AND CHILD CUSTODY SPEECH RESTRICTIONS EUGENE VOLOKH* The best interests of the child test-the normal rule applied in custody disputes between two parents-leaves family court judges ample room to consider a parent's ideology. Parents have had their rights limited or denied partly based on their advocacy of atheism, racism, homosexuality, adultery, nonmarital sex, Communism, Nazism, pacifism and disrespect for the flag, fundamentalism, polygamy, and religions that make it hard for children to fit in the western way of life in this society. Courts have also penalized or enjoined speech that expressly or implicitly criticizes the other parent, even when the speech has a broader ideological dimension. One parent, for instance, 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. Another mother was stripped of custody partly because she accurately told her 12-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn't in fact the girl's biological father. Courts have also restricted a parent's religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory (sometimes pure speculation, sometimes based on some evidence in the record) that the children will be made confused and unhappy by the contradictory teachings, and will be less likely to take their parents' authority seriously. This article argues these restrictions are generally unconstitutional, except when they're narrowly focused on preventing one parent from undermining the child's relationship with the other. But in the process the article makes several observa- tions that may be helpful whether or not readers endorse this proposal: (1) The best interests test lets courts engage in a wide range of viewpoint-based speech restrictions. (2) The First Amendment is implicated not only when courts issue orders restricting parents' speech, but also when courts make custody or visitation decisions based on such speech. (3) Even when the cases involve religious speech, the Free Speech Clause is probably a stronger barrier to the judge's penalizing the speech than are the Religion Clauses. (4) If parents in intact families have First Amendment rights to speak to their children, without the government's restricting the speech under a best interests standard, then parents in broken families gener- * Copyright © 2006 by Eugene Volokh, Gary T. Schwartz Professor of Law, UCLA School of Law (volokh@law.ucla.edu). Many thanks to Janet Alexander, Diane Lynn Amann, Scott Altman, Richard Banks, Elizabeth Bartholet, David Bernstein, Stephanie Crino, Michele Dauber, Sharon Dolovich, Jim Dwyer, Rich Ford, Rick Garnett, Tom Grey, Joe Grundfest, Chris Lansdown, Gia Lee, Dan Lowenstein, C.J. Mahoney, Stephen Marsh, Leslie Pereira, Judge Susan Reck, Laura Rosenbury, Bill Rubenstein, David Sklansky, Kathy Stone, Lynn Stout, Michael Wald, and Noah Zatz for their helpful comments. Thanks also to Paul Lomio, Sonia Moss, Rich Porter, Erika Wayne, Kate Wilko, and Naheed Zaheer of Stanford's Robert Crown Law Library and to Amy Atchison, Kevin Gerson, Cheryl Kelly, June Kim, and Jenny Lentz of the UCLA Law Library for all their help; and to Landon Bailey and Andrea Hwang for their research assistance. 631 Reprinted with Permission of New York University School of Law

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