Free Speech vs. Best Interests of the Child: Can your Constitutional Rights Hurt You in a Custody Battle?

Posted in Divorce

The answer: absolutely!

A recent Bucks County custody battle involved a father who created a website which, among other things, related his experiences with the Bucks County court system. Included on the website were blogs which referenced his ex-wife. These references were described by the judge hearing his custody case as “denigrating and belittling comments about mother”. The judge further advised father “You may say anything that you would like to say. You may publish it. You may put it on a billboard. But you will not have your children, because that is abusive”. Purportedly, the judge then ordered the website shut down and ordered father to stop blogging. The father has filed an appeal claiming the judge’s order violates his constitutional rights to free speech.

Whether or not the judge’s order violates father’s right to free speech is a separate issue from whether the judge can use the website information and blogs as evidence in the custody case. 

Pennsylvania has recently detailed the factors a judge must consider in awarding custody. The relevant factors in this case include:

  • The level of conflict between the parties and the willingness and ability of the parties to cooperate together.
  • The attempts of a parent to turn the child against the other parent
  • Which party is more likely to encourage and permit frequent and continuing contact between the child and another party.
  • The present and past abuse committed by a party or member of the party’s household.       

Additionally, research is conclusive across the board and child custody experts are unanimous: the more animosity displayed between parents, the greater the negative impact on the children.
   
While the father can proudly, and in all likelihood legally, stand up and champion his First Amendment rights – he does it with a price. While he may win in his appeal, he will lose in  custody and, most importantly, in his relationship with his children.
   
The internet and various forms of social media are playing larger and more significant roles in custody disputes. It’s important for a parent who contemplates custody litigation to consult with an attorney experienced in these issues so they can put themselves in the best possible position to obtain a favorable outcome.