Santa Clause, The Easter Bunny The Tooth Fairy and Divorce

By Michael E. Chionopoulos

Published in Res Gestae February, 2009

Amicable divorce is much like Santa Clause, the Easter Bunny and the Tooth Fairy – we all know they are fantasies, but we intently want to believe each of their surreal images and the concomitant message of perennial hope. Awaking with a licentious hang-over throbbing in one’s libido only to discover his/her matrimonial bonds were formed with defective emotional epoxy is a traumatic event – particularly when there are minor children involved. Nonetheless, most couples embark upon the task of seeking the ever elusive amicable divorce.

With the betrothed now having become the begrudged, the best of parsimonious intentions turn into acrimonious conduct with each party seeking legal validation of their emotional positions. Parties often seek a post-connubial order visiting maximum legal malevolence upon the other. This is especially true if one of the parties had entertained the company of an extra-nuptial paramour. The spurned spouse will often request a “be good” order seeking to preclude the other spouse from having the former paramour spend the night during visitation or shared custody with the parties’ children. In a temporary order, such a condition seems harmless enough. However, a constitutional issue arises when a decree or post-decree order contains “be good” language.

Freedom of association must be free from obstruction by state government.[1] Parents’ rights to exercise control over their childrens’ upbringing, education and other aspects, has long been held to be constitutionally protected.[2] Moreover, when a State seeks to inquire about an individual's associations, a heavy burden lies upon it to show that the inquiry is necessary to protect a legitimate state interest.[3] The test for sticking a governmental nose into parents’ rights to determine who may see their children is two pronged: What will serve the best interests of the child; weighed against what harm will come to the child without state meddling.[4] State invasion into parents’ rights to determine those with whom their children may have contact is a serious constitutional digression.[5]

Florida’s public policy is to assure a minor child frequent and continuing contact with both parents after marriage has been dissolved.[6] That being true, absent a showing that the parent’s new significant other presents a danger to the child, any state interference with who the parent permits his/her children to interact with is simply unconstitutional. If, on the other hand, the parents’ agree that neither will have a visitor of the opposite sex spend the night when they have the children, having that put into a court order would not necessarily be unconstitutional. However, if one parent subsequently fails to abide by that agreed order, can one be held in contempt?

There are no cases directly on point, but there are at least two ways to assay that conundrum: A traditional contractual analysis, i.e. offer, acceptance and consideration. Even under a contract analysis, it is non sequitur that a court could enforce a contract with the semi-criminal procedure of in-direct contempt. The second manner in which to analyze the issue is one of simply enforcing a court order. Much like the first analysis, it seems non sequitur that a court could punish with a quasi-criminal action that which it lacked constitutional authority to order in the first place.

Ultimately, the argument that it is immoral – and therefore not in the best interest of the child and, in fact damaging to the child – to expose the parties’ child(ren) to a live-in or overnight paramour during visitation does not pass constitutional muster. Of course, Florida has a legitimate and compelling interest in protecting children. However, absent specific justification, that line is crossed when a court projects its glomming governmental fingers into the parents’ constitutional pie. No matter how morally repugnant each of us or the court may find the fact that children are exposed to a parent with a live-in, unmarried significant other, absent a specific showing of detriment to the child(ren)’s interests, the courts may not superimpose their morality over the law. Indeed, such judicial activism will not find repose in the cool shade of our constitutionally rooted tree.

[1] Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 301 (U.S. 2000).

[2] Pierce v. Soc'y of Sisters, 268 U.S. 510, 534 (U.S. 1925)

[3] Baird v. State Bar of Ariz., 401 U.S. 1, 6-7 (U.S. 1971).

[4] Clearly, this Court has consistently held all statutes that have attempted to compel visitation or custody with a grandparent based solely on the best interest of the child standard, without the required showing of harm to the child, to be unconstitutional. We agree with the district court below and likewise hold that section 61.13(2)(b)2.c. of the Florida Statutes is unconstitutional as violative of Florida's right of privacy because it fails to require a showing of harm to the child prior to compelling and forcing the invasion of grandparent visitation into the parental privacy rights. Section 61.13(2)(b)2.c. provides that a court "may award the grandparents visitation rights with a minor child if it is in the child's best interest."§ 61.13(2)(b)2.c., Fla. Stat. (2001). This provision does not require a showing of the essential element of harm to the child should visitation with a grandparent be denied (Sullivan v. Sapp, 866 So. 2d 28, 37-38 [Fla. 2004]).

[5] Id.

[6] Schutz v. Schutz, 581 So. 2d 1290, 1293 (Fla. 1991)