[Eugene Volokh] "If Merely Using Profanity Can Cause a Parent to Lose Custody,"

["the majority of parents might be in danger of losing custody of their children." Plus abortion, opposite-sex roommates, "serial cohabitation without benefit of vows," parents' custody rights vis-a-vis nonparents (here grandparents), and more.]

From Fyffe v. Cain, decided last week by the Georgia Court of Appeals:

H.C., who was 11 years old at the time the trial court issued its custody order, was born to the Mother and Father in 2007. The couple married in 2009 and divorced in 2012. In the divorce decree, the trial court awarded legal custody of H.C. to both parents and gave physical custody of H.C. to the Father. The Mother was given visitation rights and ordered to pay child support. On July 29, 2017, the Father was killed in a motorcycle accident. Following the father's death, the Mother took H.C. to live with her, and on August 25, 2017, the Grandparents filed a complaint seeking physical and legal custody of H.C…. [T]he trial court awarded legal and physical custody of H.C. to the Grandparents and visitation to the Mother ….

[1.] The start of any analysis that affects parental rights is the recognition that a parent has "a constitutional right under the United States and Georgia Constitutions to the care and custody of their children[ ]" and that this right "is a fiercely guarded right that should be infringed upon only under the most compelling circumstances." To guard that right, a non-parent seeking custody must overcome three constitutionally based presumptions in favor of parental custody: "(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child's best interest is to be in the custody of a parent." …

[I]n order to protect the parent's constitutional rights and to overcome the constitutionally based presumptions, our courts have held that the non-parent under these circumstances "must show, with clear and convincing evidence, that the child will suffer either physical harm or significant, long-term emotional harm if custody is awarded to the parent." To assess harm, "trial courts must consider a variety of factors beyond biological connection or generalized notions of parental fitness," including "(1) who are the past and present caretakers of the child or children; (2) with whom has the child or children formed psychological bonds and how strong are these bonds; (3) have the competing parties evidenced interest in, and contact with, the child or children over time; and (4) are there any unique medical or psychological needs of the child or children." Moreover, harm in this context does not include "merely social or economic disadvantages." Suffice it to say, a non-parent bears a heavy burden in seeking to take custody of a child away from a parent….

[2.] [The trial court concluded] that significant, long-term emotional harm would result from allowing the Mother to continue with custody and that it is in the best interests of H.C. for her Grandparents to be awarded permanent physical custody….

The trial court acknowledged that in the fourteen months that H.C. was in her Mother's custody, her grades were "quite good" and remained at the same level as when her Father was alive. However, the trial court found that the Mother had used the "F" word in front of H.C. and on social media and that she had called the Grandparents profane names. {The trial court made no finding that H.C. actually heard this name-calling, while noting that the Grandmother believed that H.C. heard it over the speakerphone.} Twice, H.C. had been put "on restriction" and had her cell phone taken away from her as discipline. Also, the Mother limited visitation with the Grandparents, and on one occasion it was because H.C. was "on restriction." The Mother also received a speeding ticket while H.C. was in the car.

Even viewing these findings with deference, they fail to support the conclusion that H.C. would suffer significant, long-term emotional harm if left in her Mother's custody. The guardian ad litem testified that he was not bothered by the Mother's language and opined that the Mother had "done a fine job raising the child," and that the child's "optimistic, bright, smiling, shining personality" "is no doubt in large part due to the fantastic job that her mother has done." The Grandparents offered no evidence showing that a parents' use of profanity can result in emotional harm to a child.

Indeed, if merely using profanity can cause a parent to lose custody, the majority of parents might be in danger of losing custody of their children. {A 2006 Associated Press Profanity Study, which interviewed 1001 adults, found that 65% used the F-word in conversations, and 79% used swear words in conversations.} Similarly, one speeding ticket and the Mother's decision to discipline her pre-teen child by placing her on restriction and taking away her phone cannot be considered harmful absent additional evidence of negative circumstances surrounding the ticket or that the discipline resulted in harm to the child. {Although the guardian ad litem testified that limiting visitation with the Grandparents, especially the Grandfather, would harm H.C., our legislature has provided a means by which family members may seek visitation of a child whose parent has died, without taking custody away from the other parent.} …

The Father and Mother divorced in 2012, and the trial court found that from 2012 to 2017 when the Father was killed, the Mother was unable to establish that she made any child support payments although she testified that she made a little more than one half of them. The trial court made no finding that the Mother's lack of child support had caused the child any harm, emotional or otherwise, and the evidence is to the contrary. {The record reflects that the Father never attempted to collect the overdue child support through any court proceeding. Both the Mother and H.C.'s stepmother (the Father's widow) testified that the Father and Mother agreed not to go by the divorce decree, but instead had their own personal agreement regarding child support. Although the stepmother was not aware of the terms of that agreement, she said that H.C. was always taken care of: "Whenever [H.C.] needed something, her mom was there."} Moreover, the Grandparents presented no evidence that H.C. had been deprived in any way during the 14-month period the Mother had custody….

The trial court also found that the Mother "had a lifetime history of questionable and sometimes immoral conduct when it comes to sex[,]" pointing to two abortions the Mother had undergone, a child born out of wedlock after her divorce from the Father, a male roommate {with whom, according to the Mother, her relationship was "completely platonic"} while still married to the Father, two boyfriends that she lived with, and two other male friendships that the Mother described as nonsexual and platonic. The trial court then explains in its conclusions of law that:

"The Court is concerned about example and exposure.

"The mother in this case has set a very poor moral example for her daughter and the relationships she has had with men: repeated abortions, out-of-wedlock childbirth, having one man as a 'roommate' while married to another, engaging in serial cohabitation without benefit of vows."

Although the trial court notes that these relationships were open and not hidden from the child, he makes no finding that any of these relationships, or the relationships collectively, have resulted in harm to the child. "Under Georgia law, a parent's cohabitation with someone is not a basis for denying custody or visitation absent evidence that the child was harmed or exposed to inappropriate conduct." Likewise, the trial court made no finding that H.C. was even aware that her Mother had abortions, much less that she was harmed by them.

The trial court also found that at least two of the men the mother had allowed in her life "with [H.C.'s] knowledge and in her presence," were violent individuals and that the violence had progressed to the extent that the Mother had to obtain a permanent protective order against one and the other one is now facing criminal charges. However, no evidence supports that H.C. had knowledge that these men had been violent or that they had been violent in her presence. Moreover, although these past episodes of violence in the Mother's life are troubling, there is absolutely no evidence that the mother had allowed the men to be violent to H.C. or that the child had any knowledge that her Mother had sought protection from the courts from these men. Accordingly, there is no evidence showing that the child had suffered emotional or other harm as a result of the actions of these men.

The trial court also found that the Mother had engaged in acts of violence, the latest of which took place in 2017, involved a dispute with the mother of a former boyfriend, who was knocked to the ground during the altercation. {In addition to the 2017 incident, one incident happened eleven years before the hearing when the Mother was a teenager, before H.C. was born, and another happened when the Mother hit the Father in the face in 2008, ten years before the hearing. However, there is no evidence that any arrests occurred or that any protective orders were sought or issued in connection with these incidents.} Although this finding is likewise troubling, the trial court made no finding, and we have not found any evidence in the record, that H.C. was exposed to any of these incidents, subjected to any violence, or was even aware of her Mother's actions in this regard. Nor was there any finding or evidence that in the fourteen months that H.C. was in her Mother's custody, that the Mother had engaged in any violence or been involved in any violent or potentially violent relationships….

The trial court also made findings on the Grandparents' stable employment history and home life, noting that they "have been always faithful to one another," and that there has been "no violence between themselves or with any third party, no cussing, and no smoking." The Grandparents have been active members of a church for 30 years.

However, such factors are not relevant to a consideration of whether the child is likely to suffer long-term emotional harm in the Mother's custody. In determining the issue of long term harm under Georgia law, "a court is not permitted to terminate a parent's natural right to custody merely because it believes that the children might have better financial, educational, or moral advantages elsewhere, that is, the parent's ability to raise her children is not to be compared to the fitness of a third person." Comparing the Grandparents' lifestyle to the Mother's on the basis of such moral and economic distinctions "is precisely the sort of comparison trap that trial courts are not permitted to fall into."

A dissenting judge disagreed with the majority's reading of the record as to some other factual matters.