Court Overrules Gag Order Barring Discussion of Child Custody Case

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Family courts, when dealing with disputes involving children, must consider a child’s best interests and rule in a way that protects the child. This can, at times, include orders restraining the parents and possibly other adults from making certain statements while litigation is ongoing. For example, a court may order parents not to discuss ongoing litigation with the children. The First Amendment to the U.S. Constitution sets very strict limits on a court’s power to prevent people from speaking on particular issues. A 2016 appellate court decision from Georgia examined this issue. The court overturned an injunction barring the parents from making any public statements about the case, including on social media, until the youngest child turned 18—i.e., after 10 years.

The First Amendment is very often misunderstood in public discourse. It only restrains the actions of the government with regard to private individuals’ speech. The U.S. Supreme Court summarized the First Amendment’s free speech protections in its 1972 decision in Grayned v. City of RockfordWhile the “government has no power to restrict [speech] because of its message,” the court noted “that reasonable ‘time, place and manner’ regulations…are permitted.” This means that government officials cannot prevent a person from saying something solely because they do not like what the person has to say, but they can prevent the person from shouting it through a megaphone outside someone’s house in the middle of the night.

Since the First Amendment generally only allows the government to restrain speech based on “time, place, and manner,” most efforts to prevent a person from saying something in advance—often known as prior restraint—are unconstitutional. In 1963’s Bantam Books, Inc. v. Sullivan, the Supreme Court stated that “[a]ny system of prior restraints of expression…bear[s] a heavy presumption against its constitutional validity.” The injunction at issue in the Georgia case was arguably a form of prior restraint.

The parties had two sons but never married. The mother also had a daughter from a previous relationship. After their relationship ended, they entered into a consent order in 2007 that gave the father physical custody of the two sons. It also gave him visitation rights with the daughter, even though she was not his biological child, since he had played a substantial role in raising her.

In 2014, the mother petitioned to modify the custody order, requesting the termination of the father’s visitation rights with her daughter. After an investigation by a guardian ad litem and a hearing, the court granted custody of all three children to the father. It found that the mother had engaged in various forms of misconduct, calling her “controlling, manipulative, recalcitrant, vindictive, and not … truthful.” The court also issued an injunction preventing both parents from “putting, placing, or causing to be placed any information concerning this custody case upon or in any social media, website, or other public medium.”

The appellate court vacated the injunction, finding it to be an unconstitutional prior restraint. The court noted that neither party requested an injunction, and it found that no “compelling interest” existed that would justify such a broad restriction on speech.

A child custody case in New York City requires careful planning and preparation in order to ensure that your rights are protected. A knowledgeable and experienced family law attorney can help you understand your obligations and represent your interests. Ingrid Gherman has practiced family law in the courts of New York City for over 30 years. To schedule a confidential consultation with a member of our team, contact us today online or at (212) 941-0767.

More Blog Posts:

Courts Occasionally Intervene in Religious Disputes in New York City Divorce Cases, New York Divorce Attorney Blog, January 30, 2017

New York Court Addresses Question of Husband’s Legal Competence to File for Divorce, New York Divorce Attorney Blog, December 6, 2016

Federal Court Dismisses Civil Rights Claim in New York Child Support Case, New York Divorce Attorney Blog, May 16, 2016


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