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June 17 — The First Amendment rights of two estranged parents and their attorneys were violated when the judge overseeing their custody case entered a permanent injunction sua sponte barring them from discussing the case in public for 10 years, the Georgia Court of Appeals held June 15 ( Baskin v. Hale, 2016 BL 190671, Ga. Ct. App., Nos. A15A2232 & A16A0654, 6/15/16 ).
Determining that the judge had entered the injunction due to the mother's public criticisms of the litigation, Chief Judge Sara L. Doyle pointed to the absence of any evidence of “imminent danger to a compelling interest of such magnitude that the restraint on [ ] speech would be warranted.”
She also noted that the judge had failed to properly conduct the balancing test required by Landmark Communications v. Virginia, 435 U.S. 829 (1978), and did not narrowly tailor the restrictions to protect any compelling interest.
The unmarried parents, Shannon Baskin and Gary Hale, have two sons. Baskin also has a daughter, A.W., who was 10 months old when the parties began their relationship in 2003.
After their relationship ended, the parties entered into a 2007 consent order under which Baskin retained physical custody of A.W. and Hale was granted joint legal custody of, and visitation with, A.W. The order specifically acknowledged that he was not her biological father but stated that he had raise A.W. “as his own.”
In 2014, Baskin petitioned to terminate Hale's custodial and visitation rights as to A.W. and to modify his rights as to their sons. However, the superior court awarded him primary physical custody of all three children. (The parties retained joint legal custody.)
While recognizing that Hall was not A.W.'s biological or legal father, it found he had “acquired parental status through the 2007 Consent Order,” and that Baskin was “unfit for physical custody of [A.W., who] will suffer physical harm and significant long-term emotional harm” if she remained in Baskin's “chaotic and unstable” household.
Shortly thereafter, the court entered a permanent injunction sua sponte prohibiting the parties and their attorneys (and court personnel) from discussing the custody case with the media and/or from placing or causing the placement of any information about the case on social media. The injunction was to remain in effect until the parties' youngest son—who was then eight years old—turned 18.
The court noted that it had previously entered a “gag order” in the case after Baskin made “derogatory and disparaging comments” on social media about Hale, the court, and the proceedings, which it found to be detrimental to the children and intimidating to the parties.
Baskin appealed the custody award and the injunction.
Agreeing with her that the court erred by entering the injunction, Doyle noted that it had relied on Ga. Code Ann. § 9-11-65(e) (court in divorce or custody action may “make prohibitive or mandatory orders [ ] upon such terms and conditions as the court may deem just.”)
She further noted that it cited Lacy v. Lacy, 740 S.E.2d 695, 39 FLR 1266 (Ga. Ct. App. 2013), which affirmed a temporary restraining order enjoining the parties in an ongoing divorce and custody action from “posting matters about each other or their current litigation on Facebook or other social network sites.”
Lacy also stated that courts “can require the parties in a divorce proceeding to refrain from making derogatory remarks about the other before the children,” Doyle added.
Saying, however, that the analysis “does not end there,” she observed that prior restraints of speech, such as the order in this case, “bear a `heavy presumption against [their] constitutional validity',” New York Times Co. v. U.S., 403 U.S. 713, 714 (1971), and require a balancing of the “danger said to flow from the particular utterance [ ] against the need for free and unfettered expression.” Landmark Communications, at 842-43.
After reviewing the injunction in this case, Doyle determined that the court “failed to properly balance the danger flowing from the prohibited speech with the parties' and attorneys' First Amendment rights.”
Finding that it had cited no evidence regarding the negative affect the allegedly “derogatory and disparaging comments posted in a public forum” had on the children, she also found that the court had made no attempt to find that the injunction was narrowly tailored to protect any compelling interest.
Also pointing out that neither party had requested the injunction, Doyle determined that the court “was primarily concerned with Baskin's public criticism regarding the litigation, including the court's rulings, as well as the involvement of third parties who, among other actions, questioned the accuracy of court transcripts.”
“Certainly, we recognize the authority granted to trial courts to restrict a parent's communications and postings on social media during the pendency of a divorce or custody proceeding [ Lacy]. But we cannot condone the superior court's attempt in this case to restrict the parties' and lawyers' right to publically criticize the court and the ligation for the next ten years,” she asserted, vacating the permanent injunction.
Doyle also reversed the order granting custody of A.W. to Hale, explaining that he had no standing to seek it.
Finding that Baskin had not permanently surrendered her parental power or rights over A.W. in the 2007 consent order as required by § 19-7-1 (parental power may be lost by “[v]oluntary contract releasing the right to a third person”), she said that, instead, Baskin had “simply agreed that Hale was entitled to joint custody of A.W. [ ] at that time.”
In rejecting Hale's claim that the 2007 order was res judicata as to custody, Doyle reminded him that unlike adoption or termination orders, custody and visitation rights are subject to review and modification. See Bates v. Bates, 730 S.E.2d 482, 38 FLR 1445 (Ga. Ct. App. 2012) (adoption).
Judges Herbert E. Phipps and Michael P. Boggs concurred.
Shannon D. Briley, Atlanta, represented the mother. Hale was represented by Brandon K. Dial, Augusta.
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