Schutz v. Schutz

522 So. 2d 874, 1988 WL 8108
CourtDistrict Court of Appeal of Florida
DecidedFebruary 9, 1988
Docket86-1756, 86-1757
StatusPublished
Cited by6 cases

This text of 522 So. 2d 874 (Schutz v. Schutz) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Schutz v. Schutz, 522 So. 2d 874, 1988 WL 8108 (Fla. Ct. App. 1988).

Opinion

522 So.2d 874 (1988)

Laurel D. SCHUTZ, Appellant,
v.
Richard R. SCHUTZ, Appellee.

Nos. 86-1756, 86-1757.

District Court of Appeal of Florida, Third District.

February 9, 1988.
Rehearing Denied April 25, 1988.

Elser & Samuels, Daniels & Hicks and Patrice A. Talisman, Miami, for appellant.

Marks, Aronovitz & Leinoff and Andrew M. Leinoff, Miami, for appellee.

Before SCHWARTZ, C.J., and HENDRY and HUBBART, JJ.

SCHWARTZ, Chief Judge.

This is an appeal by the custodian mother-former wife from a post-dissolution order on child support and visitation, which had been made necessary by the fallout from the appellant's assiduous and unfortunately largely successful efforts both to secrete physically the parties' two daughters from their father and to poison their hearts and minds against him.[1] None of the points asserted for reversal have any *875 merit. We find it appropriate to discuss only one: what we regard as the baseless claim that the requirement that she instruct the children to love and respect their father[2] violates her rights to free speech.

The only properly considered issue in this case concerns the best interests of the children. Our knowledge of the parent-child relationship reveals, and therefore our law says, that children are entitled to a warm and loving affinity with both their parents. Because of this fact, a custodian such as the appellant mother has an "affirmative obligation" to encourage and nurture the relationship between the children and the non-custodial parent. Gardner v. Gardner, 494 So.2d 500, 502 (Fla. 4th DCA 1986), appealed dismissed, 504 So.2d 767 (Fla. 1987); In re Adoption of Braithwaite, 409 So.2d 1178, 1180 (Fla. 5th DCA 1982). Goldenberg, Pity the Poor Child and the Practitioner: Handling Current Issues Concerning Parental Responsibility, Fla.B.J., Nov. 1987, at 45, correctly points out that:

In Gardner, the court underscored that a PRP [primary residential parent] cannot remain neutral with regard to contact between the child and the SRP [secondary residential parent]. The PRP must take measures to ensure that the child sees the other parent or face serious legal sanctions and possibly the loss of primary residence. [e.s.] (footnote omitted)[3]

See also In re S.D., 549 P.2d 1190, 1200-01 (Alaska 1976). The order in question — particularly that aspect to which the appellant most objects, the requirement that she attempt to raise her daughters' opinion of their father to one she herself does not hold — is in entire accordance with these principles and is therefore plainly substantively correct.

Nor, it should be unnecessary to say, is the mother "protected" by the first amendment from a requirement that she fulfil her legal obligation to undo the harm she had already caused and to vindicate the interests with which she should be most concerned — those of her daughters rather than her own personal ones. It is axiomatic that the mere fact that speech or associational activities are involved does not render words or conduct inviolate from governmental control in the name of the first amendment. Such rights are not "subject to analysis in terms of absolute[;] ... all basic rights of free speech are subject to reasonable regulation." State v. Scott, 678 S.W.2d 50, 52 (Tenn. 1984); Dickson v. Dickson, 12 Wash. App. 183, 186-189, 529 P.2d 476, 478-79 (1974), cert. denied, 423 U.S. 832, 96 S.Ct. 53, 46 L.Ed.2d 49 (1975); see United States v. Diapulse Corp. of America, 457 F.2d 25, 28 (2d Cir.1972) (correction of mislabeling required by Federal Food, Drug and Cosmetic Act not protected by first amendment); American Frozen Food Institute v. Mathews, 413 F. Supp. 548, 555 (D.D.C. 1976) (labeling requirements of Food and Drug Administration involve no prior restraint on first amendment rights), aff'd sub nom. American *876 Frozen Food Institute v. Califano, 555 F.2d 1059 (D.C. Cir.1977). Accordingly, various kinds of communication are subject to regulation or outright preclusion by governmental action when they run afoul of established principles of law or policy. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).[4]

As one might expect, since the welfare of children is the concern upon which the law places perhaps the greatest emphasis of all, this principle has been widely applied to bar reliance upon the first amendment by a parent whose otherwise protectable conduct runs counter to the best interests of his or her child. As the court said in Dickson, in upholding an order enjoining the father from making defamatory remarks about the mother:

[A]pplying the balancing test enunciated in Galella [v. Onassis, 353 F. Supp. 196 (S.D.N.Y. 1972), aff'd and modified, 487 F.2d 986 (2d Cir.1973)], interference with Mrs. Dickson's privacy and the children's well being outweighs Mr. Dickson's absolute exercise of his First Amendment rights of free speech and free exercise of religion.

12 Wash. App. at 188, 529 P.2d at 479; Fargnoli v. Faber, 105 A.D.2d 523, 525, 481 N.Y.S.2d 784, 787 (1984) (no first amendment violation to enjoin parent from disparaging communications with children's guardian), appeal dismissed, 65 N.Y.2d 631, 491 N.Y.S.2d 158, 480 N.E.2d 746 (1985); J.L.P.(H) v. D.J.P., 643 S.W.2d 865, 871-72 (Mo. Ct. App. 1982) (no first amendment violation to require limits on visitation in order to prevent exposing child to homosexuality); DeVita v. DeVita, 145 N.J. Super. 120, 125-128, 366 A.2d 1350, 1353-54 (App.Div. 1976) (no rights to privacy or free speech violated to restrict visitation from female companion spending night in father's home with children); In re B., 85 Misc.2d 515, 380 N.Y.S.2d 848, 857-60 (Sup.Ct. 1976) (no freedom of speech or association barriers to transfer of custody due to mother's homosexual relationship); see also Henley v. Rocket, 243 Ala. 172, 8 So.2d 852 (1942) (upholding injunction prohibiting association with another in domestic context); Stark v. Hamilton, 149 Ga. 227, 99 S.E. 861 (1918) (same); Ex parte Warfield, 40 Tex.Crim. 413, 50 S.W. 933 (1899) (same). These authorities control the present case.

If it is wrong falsely to shout fire in a crowded theater, Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470 (1919), it is just as wrong for the appellant to refuse affirmatively to encourage the relationship between these children and this parent. Gardner, 494 So.2d at 500. The lower court properly ordered her to do so.

Affirmed.

HUBBART, J., concurs.

HENDRY, Judge, dissenting.

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Bluebook (online)
522 So. 2d 874, 1988 WL 8108, Counsel Stack Legal Research, https://law.counselstack.com/opinion/schutz-v-schutz-fladistctapp-1988.