Child Custody, Visitation & Relocation

Gag Order Issued In Child Custody Case

Trial court’s gag order preventing second wife and her attorneys from publicly discussing anything that might identify or harm the child in a child custody case was constitutionally permissible since it was narrowly-tailored to advance the substantial government interest of safeguarding the child from physical and emotional harm.

Father and first wife adopted child in 2007 when he was six months old. First wife died two years later and father raised child with the support from first wife’s family. Father married second wife in 2012. Second wife adopted child in 2013. Second marriage fell apart a few months later, father filed for custody of the child in 2015 and second wife counterclaimed for primary custody and later alleged that father had abused her and had sexually abused the child. The Petition for Abuse was denied. The court appointed a GAL to represent the child’s best interests and the GAL recommended the child be immediately removed from second wife’s care and placed with father and that father be granted sole legal custody of child. After an extensive trial, the trial judge granted father sole legal and physical custody of the child. Mother filed a petition for allowance to appeal to the Pennsylvania Supreme Court which was denied. While the appeal was pending, second wife’s attorney held a press conference on YouTube concerning the case, identified second wife by name and posted child’s in-court testimony and forensic interview on the internet. A newspaper article about the case contained graphic testimony if the alleged sex abuse, the child’s age and the name of the child’s best friend. Father sought sanctions and a gag order. The trial court denied the motion for sanctions but granted a gag order prohibiting mother or her attorneys from speaking publicly about the case in any way that could cause the child to be identified. Second wife appealed.

Second wife argued the gag order violated her free speech rights. She asserted it was an impermissible prior restraint on protected speech, was an unlawful content-based restriction on protected speech, was an impermissible blanket prohibition on any remark regarding the case and imposed an unconstitutionally vague and overboard restrictionon free speech. The court found the gag order was limited to any information that would identify or tend to identify the child. The court was not concerned with the content of second wife’s speech but with the target of the speech, a juvenile whose identity and privacy the trial court sought to protect, and the order was content on neutral and narrotly tailored to serve a significant governmental interest, preventing further emotional harm to the child.

The court noted the gag order did not prevent second wife and her attorneys from speaking publicly about child abuse and parental alienation and did not bar the media from reporting on the issues or the case. Additionally, the assertion that the order was unconstitutionally vague and overbroad lacked merit. The order was limited to a specific, small group of persons intimately involved in the case and prohibited them from discussing anything that might identify or harm the child.

Reference: Digest of Recent Opinions, Pennsylvania Law Weekly, 42 PLW 58, Tuesday, January 15, 2019, S.B. v. S.S., PICS Case No. 19-0031 (Pa. Super. Dec. 24, 2018)

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