Courts sometimes issue orders limiting parents’ speech about their ex-spouse, their children, or their relatives based on the “best interests of the child,” even though that is a very nebulous concept. Speech that one judge thinks will harm a child may strike another judge as truth-telling or a harmless and reasonable point of view. Law professor Eugene Volokh describes how such orders have been used to punish parents for expressing religious or political opinions that non-parents express all the time — and are protected by the First Amendment in society at large — in “Parent-Child Speech and Child Custody Restrictions.”
When these court orders restricting parents’ speech are appealed to a higher court, they are sometimes upheld, and sometimes struck down, by appeals courts.
Today a state supreme court did the latter, striking down a trial judge’s order that ordered a child’s grandmother not to testify against the child’s father at his parole hearing.
Here is an excerpt from In re Guardianship of J.H., a decision today by the New Hampshire Supreme Court:
J.H. is a six-year-old child. His father has been incarcerated since December 2017 and has a history of criminal charges involving domestic violence and drug possession. J.H.’s mother died in 2019 when J.H. was less than three years old. His grandmother was appointed guardian of J.H.’s person and estate shortly thereafter, and J.H. has remained in her care since.
The guardian and the father have been at odds throughout this case. When the guardianship petition was filed, the father was subject to a no-contact order barring communications with J.H. Subsequently, the father sought contact and visitation with J.H. Over the guardian’s objections, the court ordered that the father could communicate with J.H. by mail and eventually progress to video visits. Both parties have accused the other of violating the court’s orders. Adding to the conflict, the guardian has petitioned to terminate the father’s parental rights. In an April 2022 order, the court expressed its frustration that “[d]espite [J.H.’s] tragic young life that has seen him lose both of his parents before his third birthday, both sides of [J.H.’s] extended family are not able to put their differences aside and cooperate for [J.H.’s] benefit.”
The court placed restrictions on both parties, including limiting the content of father’s communications with J.H. The court also imposed restrictions on the guardian. In an October 2022 order, the court ordered that the guardian and her husband “are enjoined from testifying against father’s release at any parole or similar hearing without first seeking leave of this court.” The guardian moved for reconsideration, arguing that this restriction violated her right to freedom of speech. The court denied her motion, reasoning that “[J.H.’s] best interests outweigh the guardian[‘s] free speech rights to keep father incarcerated if he becomes eligible for a parole hearing.”
The state supreme court decided that the trial court’s order restricting grandma’s speech wasn’t authorized by New Hampshire statutes, so it struck it down, without considering whether the order also violated the First Amendment:
RSA [Revised Statutes Annotated] chapter 463 confers exclusive jurisdiction over the guardianship of minors to the circuit court. RSA 463:8 permits the court to “appoint a guardian of the person or of the estate or of both,” and grants the court authority over the guardianship proceedings. Once the court has appointed a guardian, RSA 463:12 sets forth the guardian’s powers and duties….
Subsection I of the statute conveys the “powers and responsibilities of a parent regarding the minor’s support, care, and education.” Subsections II and III then articulate specific powers and responsibilities related to the minor’s overall wellbeing, encompassing the minor’s health, property, and legal and financial affairs. The statute empowers and obliges the guardian to exercise control over many aspects of the minor’s life to ensure the general wellbeing of the minor. Subsection IV then authorizes the court to “limit or restrict the powers of the guardian or impose additional duties.”
Read in the context of the whole statute, the “powers” and “duties” contemplated here relate to the guardian’s role as custodian of the minor’s affairs and welfare. Restrictions on the guardian’s and her spouse’s participation in a parole hearing, however, bear no connection to the guardian’s management of the minor’s affairs. They are unrelated to the guardian-minor relationship. If we were to read subsection IV [the “additional duties” provision] as broadly as the father suggests, the court could impose restrictions that extend far beyond the guardianship and into the personal life of the guardian. We decline to read the statute so broadly, and thus conclude that the restriction here is not permitted under RSA 463:12, IV….
