Gag Orders in Custody Cases: Is It Your Right to Speak to the Media?

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In a child custody case, do the parents have the right to talk to the media? Is that right protected by the First and Fourteenth Amendments to the United States Constitution and Article I, Section 7 of the Pennsylvania Constitution? These are the big questions that the Pennsylvania Supreme Court will be considering. The Supreme Court has agreed to hear a case of a mother and her attorneys who were subjected to a gag order for talking to the media about her child custody battle, in which she accused the father of sexual abuse of the child.

In this case, the mother’s attorney held a press conference in which he disclosed the identity of the mother and restated the child’s in-court testimony, which included allegations of sexual abuse by the father. Additional sectors of the media picked up on the story. Father then filed a motion for sanctions against the mother and her attorneys. As part of his motion, father requested that all documents relating to the case be removed from public access. While the Court denied the father’s motion for sanctions, the Court did prohibit the mother and her attorneys from speaking publicly about the case in any way that could cause the child to be identified. 

Mother asserted that her free speech rights have been violated by the gag order.  The trial court considered the following when issuing its decision as to the speech of the mother and her attorneys: 

(1) tended to identify child; 

(2) was harmful to child; 

(3) whether child’s right “to be free from undue scrutiny, ridicule, and scorn” outweighed the right of mother and her attorneys to engage in public discourse.

The trial court also noted that the child attends a school “where teachers, parents and students are likely to know each other and that the identification of a parent would naturally identify the child.”

The Superior Court noted that the trial court’s order is not concerned with the content of mother and her attorneys’ speech, but with the target of the speech (the child). The court seeks to protect the child’s identity and privacy. It is the identification of child that triggers the application of the gag order. The Superior Court also noted that the mother’s unsubstantiated allegation of sexual abuse by the father warrants confidentiality of the proceedings and that the child has suffered emotional trauma because of the strife between the parents. 

According to the court, the gag order does not prevent mother and her attorneys from speaking publicly about child abuse and parental alienation generally. The order limits mother and her attorneys from communicating anything that would tend to identify and harm child. Additionally, the order does not bar the media from any of the proceedings in the case, nor does it prohibit the media from reporting on the matter. 

What does this mean for you? 

Be careful of your use of media of any type when involved in a child custody matter. If you have questions regarding this very sensitive issue and the use of media, call Kinchloe Law at 215-301-9783 so that we can assist you in the assessment of your current situation and to discuss your options.