N.Y. Court to Mom: Remove Rock Painted With Confederate Flag Or It Will Be Considered In Custody Hearing

[James Madison]

We are moving away from the precise legal language and I want to be clear. I think I understand what you mean by “healthier environment” but the standard is “best interest” of the child. And generally, the political, economic, and religious ideology of the parent isn’t to be considered in the “best interest of the child” analysis. Parents have a 1st amendment right to free speech, and that right isn’t surrendered upon being a parent, and it isn’t surrendered upon involvement in a custody dispute.

The free speech clause keeps courts from considering a parent’s expressive message or literal speech as a factor in the best interest of the child analysis on the basis the court dislikes or disapproves of the speech. More is needed than mere dislike of the message to factor the message into the a analysis of the best interests of the child.

There’s nothing reported here to justify factoring mom’s expressive message into the analysis of the best interest of the child. The intermediate court infers the rock to be detrimental to the best interest of the child but there’s no evidence for this inference. It could be. It might not be.

Speech and the expression of that speech (whether a painted rock or repeatedly abusive and demeaning shout downs) are wholly relevant, if it affects the child.

No, not merely “affects,” and there’s no evidence the rock has “affected” the child, which makes the intermediate court’s ruling all the more puzzling.

 

[Jimmy Higgins]

We are moving away from the precise legal language and I want to be clear. I think I understand what you mean by “healthier environment” but the standard is “best interest” of the child. And generally, the political, economic, and religious ideology of the parent isn’t to be considered in the “best interest of the child” analysis. Parents have a 1st amendment right to free speech, and that right isn’t surrendered upon being a parent, and it isn’t surrendered upon involvement in a custody dispute.

The free speech clause keeps courts from considering a parent’s expressive message or literal speech as a factor in the best interest of the child analysis on the basis the court dislikes or disapproves of the speech. More is needed than mere dislike of the message to factor the message into the a analysis of the best interests of the child.

There’s nothing reported here to justify factoring mom’s expressive message into the analysis of the best interest of the child. The intermediate court infers the rock to be detrimental to the best interest of the child but there’s no evidence for this inference. It could be. It might not be.

Speech and the expression of that speech (whether a painted rock or repeatedly abusive and demeaning shout downs) are wholly relevant, if it affects the child.

No, not merely “affects,” and there’s no evidence the rock has “affected” the child, which makes the intermediate court’s ruling all the more puzzling.

Court ruled that the rock should be accounted for, not that it affects the child. If it affects the child, which would be very relevant, would be something for the Family Court to take into account. The legal representative for the child welcomed the decision, though worried it would likely devolve into more sniping between the parents.

 

[James Madison]

We are moving away from the precise legal language and I want to be clear. I think I understand what you mean by “healthier environment” but the standard is “best interest” of the child. And generally, the political, economic, and religious ideology of the parent isn’t to be considered in the “best interest of the child” analysis. Parents have a 1st amendment right to free speech, and that right isn’t surrendered upon being a parent, and it isn’t surrendered upon involvement in a custody dispute.

The free speech clause keeps courts from considering a parent’s expressive message or literal speech as a factor in the best interest of the child analysis on the basis the court dislikes or disapproves of the speech. More is needed than mere dislike of the message to factor the message into the a analysis of the best interests of the child.

There’s nothing reported here to justify factoring mom’s expressive message into the analysis of the best interest of the child. The intermediate court infers the rock to be detrimental to the best interest of the child but there’s no evidence for this inference. It could be. It might not be.

Speech and the expression of that speech (whether a painted rock or repeatedly abusive and demeaning shout downs) are wholly relevant, if it affects the child.

Well, you’re assuming there’s a “better option.” However, the facts here do not support the assumption. You’re also assuming a “better home” but again, the facts do not support this assumption.

No, I'm not assuming any home in THIS case is better.

You may dislike a painted confederate rock, but your dislike doesn’t establish the mother as a harmful to the child and it doesn’t establish the mother’s home as harmful to the child.

True, but then there is no reason to discard perfectly good evidence just because it happens to be produced legally.

Neither is there any evidence to justify the decision by the court to threaten a lower court to take into consideration the mother’s exercising her free speech rights in a specific expressive manner.

The expressive free speech IS evidence. It's the court's job to interpret the evidence.

I'm asserting that the court's mandate is to make the decision that is in the best interest of the child. The speech of the parents constitute evidence when making this decision.

The reason the 1st Amendment generally prohibits a family court from considering the political or ideological beliefs/speech of a parent in a best interest of the child analysis is to prohibit the court from making a decision based on the content of the message and whether the judge agrees or disagrees with the message.

True, but then there is no reason to discard perfectly good evidence just because it happens to be produced legally.

There is when the parent has a free speech right to such messages. There are legal limits to what a family court can consider as evidence.

The expressive free speech IS evidence. It's the court's job to interpret the evidence.

Not when there are lawful limits as to what the court may take into consideration to interpret.

 

[Angra Mainyu]

Did you mean to say the court “has found” because the court declared that the mother must remove it.

From what I can tell, the court has declared it appears that it might be harming the child or has the foreseeable potential to harm the child But I could be wrong. It would be clearer if the court made a declarative statement to the effect that the Confederate flag rock harms the child.

As others have pointed out, if this woman really cared about her daughter, that rock would be gone as soon as it was pointed out.

You do not know that the mother does not care about her daughter. She may very well disagree with the assessment that the flag hurts her daughter.

 

[James Madison]

No, not merely “affects,” and there’s no evidence the rock has “affected” the child, which makes the intermediate court’s ruling all the more puzzling.

Court ruled that the rock should be accounted for, not that it affects the child. If it affects the child, which would be very relevant, would be something for the Family Court to take into account. The legal representative for the child welcomed the decision, though worried it would likely devolve into more sniping between the parents.

You used the word “affects,” and I responded. The point is the same, generally courts aren’t to consider the political ideological speech/beliefs of parent. The intermediate court very likely knows this general rule, as they acknowledged the parent has a 1st Amendment free speech right.

Despite acknowledging her right to free speech, the intermediate court proceeded to conclude the exercise of her free speech right in some specific manner is to be considered in the best interest analysis.

 

[James Madison]

[

Wow... So reading some of the posts in this thread, I'm really hoping a lot of the posters here are NOT parents. Especially James.

The fact is, no, you cannot legally abuse children. It is child abuse to teach them to harass and hate their peers. It is child abuse to present to them a symbol that relegates them to "second class", as the Confederate Jack does.

Now, most such situations never see such scrutiny. Rarely does such a matter of the law ever actually get brought up where a judge may see it, and rarer still are actions against parents seeing as the state may often end up a worse option still.

If I was in a Harassment trial, it does not matter if the harassment takes the form of "speech". Similarly, in a custody hearing, it doesn't matter if the abuse takes the form of a rock in the driveway or a fist. Both are abuse.

It is not "mere speech"; it is, in fact, child abuse.

So of course it should be considered in determining matters of custody.


At any rate, these are not criminal proceedings, but rather is a civil matter. First amendment rights don't strictly enter into it.

This level of stupidity displayed above is the child abuse, if you are indeed a parent and pawning it off to your children.

There’s no evidence the rock was “presented to” the juvenile and no evidence the child is made to feel “relegated” as “second class.” Neither is there any evidence the rock itself has been used in any “abusive” manner in relation to the child. There’s no evidence the child has been made to feel or believe, does feel or believe, she’s “second class,” because of the rock or because of anything mom has said or done.

 

[Don2 (Don1 Revised)]

No, not merely “affects,” and there’s no evidence the rock has “affected” the child, which makes the intermediate court’s ruling all the more puzzling.

Court ruled that the rock should be accounted for, not that it affects the child. If it affects the child, which would be very relevant, would be something for the Family Court to take into account. The legal representative for the child welcomed the decision, though worried it would likely devolve into more sniping between the parents.

You used the word “affects,” and I responded. The point is the same, generally courts aren’t to consider the political ideological speech/beliefs of parent. The intermediate court very likely knows this general rule, as they acknowledged the parent has a 1st Amendment free speech right.

Despite acknowledging her right to free speech, the intermediate court proceeded to conclude the exercise of her free speech right in some specific manner is to be considered in the best interest analysis.

The Confederate flag is a symbol of hate and as such the biased-in-favor-of-the-white-mother judges didn't go far enough. They should have ordered or recommended to the office of children and families to conduct an investigation as soon as possible. It's not only because the rock likely represents something larger, but also because the father reported constant bruises. Both the lawyer for the child and the judges handling child cases are federally mandated reporters to report instances of plausible child abuse and neglect to such department and judges likely having such court employees who specialize in these things might also handle such investigation. The quick hey-just-remove-that-rock-and-we'll-forget-about-it decision was in favor of the white mother, not a violation of her rights...this after she didn't go to mandated parenting classes, after she kept moving around not providing a stable home, after she never gave the father's name to the school, after she didn't tell the black father they had moved, etc etc, yet, the court keeps covering up for her and sweeping her less suitable status as a parent than the black father right under the rug.

 

[Jimmy Higgins]

No, not merely “affects,” and there’s no evidence the rock has “affected” the child, which makes the intermediate court’s ruling all the more puzzling.

Court ruled that the rock should be accounted for, not that it affects the child. If it affects the child, which would be very relevant, would be something for the Family Court to take into account. The legal representative for the child welcomed the decision, though worried it would likely devolve into more sniping between the parents.

You used the word “affects,” and I responded. The point is the same, generally courts aren’t to consider the political ideological speech/beliefs of parent.

They aren't questioning beliefs, but the expression of beliefs and it's potential impact on the child. They said it needs to be accounted for, which the legal representative of the child can do. If they say it isn't a problem, this goes away. If they say the child indicates it bothers them, something needs to be done. I have a hard time thinking it does matter as it would have likely been brought up already, and this rock is just to piss off the father of the child. But that is for the child's legal representative to present.

The intermediate court very likely knows this general rule, as they acknowledged the parent has a 1st Amendment free speech right.

And we know that there is speech and expression from parents to their children that isn't tolerated by the courts. So hanging everything on the 1st Amendment doesn't wash.

 

[James Madison]

You used the word “affects,” and I responded. The point is the same, generally courts aren’t to consider the political ideological speech/beliefs of parent.

They aren't questioning beliefs, but the expression of beliefs and it's potential impact on the child. They said it needs to be accounted for, which the legal representative of the child can do. If they say it isn't a problem, this goes away. If they say the child indicates it bothers them, something needs to be done. I have a hard time thinking it does matter as it would have likely been brought up already, and this rock is just to piss off the father of the child. But that is for the child's legal representative to present.

The intermediate court very likely knows this general rule, as they acknowledged the parent has a 1st Amendment free speech right.

And we know that there is speech and expression from parents to their children that isn't tolerated by the courts. So hanging everything on the 1st Amendment doesn't wash.

Courts generally cannot consider political, ideological, religious speech of a parent in a best interest of the child analysis. The mother has an expressive speech right to this message. That speech may have “potential impact” isn’t sufficient, as under this standard there’s no speech that can’t be considered. More is needed for a court to consider political, religious, ideological speech/expressive conduct into consideration. The facts in this record do not justify a court considering the expressive speech.

 

[Jimmy Higgins]

They aren't questioning beliefs, but the expression of beliefs and it's potential impact on the child. They said it needs to be accounted for, which the legal representative of the child can do. If they say it isn't a problem, this goes away. If they say the child indicates it bothers them, something needs to be done. I have a hard time thinking it does matter as it would have likely been brought up already, and this rock is just to piss off the father of the child. But that is for the child's legal representative to present.

And we know that there is speech and expression from parents to their children that isn't tolerated by the courts. So hanging everything on the 1st Amendment doesn't wash.

Courts generally cannot consider political, ideological, religious speech of a parent in a best interest of the child analysis.

This typically doesn't come up as a white mother of a mixed race African American child doesn't commonly have Confederate stuff lying about the house.

The mother has an expressive speech right to this message. That speech may have “potential impact” isn’t sufficient, as under this standard there’s no speech that can’t be considered. More is needed for a court to consider political, religious, ideological speech/expressive conduct into consideration. The facts in this record do not justify a court considering the expressive speech.

Until the Legal Representative can say it is or isn't impacting the child, we can't know if it is impacting the child.

 

[James Madison]

This typically doesn't come up as a white mother of a mixed race African American child doesn't commonly have Confederate stuff lying about the house.

The mother has an expressive speech right to this message. That speech may have “potential impact” isn’t sufficient, as under this standard there’s no speech that can’t be considered. More is needed for a court to consider political, religious, ideological speech/expressive conduct into consideration. The facts in this record do not justify a court considering the expressive speech.

Until the Legal Representative can say it is or isn't impacting the child, we can't know if it is impacting the child.

The intermediate appellate court didn’t order the legal representative to do anything. Whether the legal representative does or doesn’t do what you say is irrelevant to the intermediate court because the intermediate court has told the trial court to consider the expressive speech anyway. You think the trial court is under some obligation to investigate whether the expressive message is impacting the child in a harmful manner. The court isn’t, and the intermediate court didn’t order the trial court to ascertain whether the expressive message did or didn’t, does or doesn’t. The trial court was ordered to consider the expressive message, nothing more.

“As such, while recognizing that the First Amendment protects the mother's right to display the flag, if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.”

 

[T.G.G. Moogly]

We are moving away from the precise legal language and I want to be clear. I think I understand what you mean by “healthier environment” but the standard is “best interest” of the child. And generally, the political, economic, and religious ideology of the parent isn’t to be considered in the “best interest of the child” analysis. Parents have a 1st amendment right to free speech, and that right isn’t surrendered upon being a parent, and it isn’t surrendered upon involvement in a custody dispute.

The free speech clause keeps courts from considering a parent’s expressive message or literal speech as a factor in the best interest of the child analysis on the basis the court dislikes or disapproves of the speech. More is needed than mere dislike of the message to factor the message into the a analysis of the best interests of the child.

There’s nothing reported here to justify factoring mom’s expressive message into the analysis of the best interest of the child. The intermediate court infers the rock to be detrimental to the best interest of the child but there’s no evidence for this inference. It could be. It might not be.

Speech and the expression of that speech (whether a painted rock or repeatedly abusive and demeaning shout downs) are wholly relevant, if it affects the child.

No, not merely “affects,” and there’s no evidence the rock has “affected” the child, which makes the intermediate court’s ruling all the more puzzling.

Is there any evidence that swimming pools kill children?

There’s no evidence the rock was “presented to” the juvenile and no evidence the child is made to feel “relegated” as “second class.” Neither is there any evidence the rock itself has been used in any “abusive” manner in relation to the child. There’s no evidence the child has been made to feel or believe, does feel or believe, she’s “second class,” because of the rock or because of anything mom has said or done.

And therefore the swimming pool is innocent of being able to inflict any harm to children.

It's a pretty dumb comparison, I know. But no dumber than saying a child's welfare is not a matter of the ideological leanings of a parent or guardian.

 

[laughing dog]

Did you mean to say the court “has found” because the court declared that the mother must remove it.

From what I can tell, the court has declared it appears that it might be harming the child or has the foreseeable potential to harm the child But I could be wrong. It would be clearer if the court made a declarative statement to the effect that the Confederate flag rock harms the child.

As others have pointed out, if this woman really cared about her daughter, that rock would be gone as soon as it was pointed out.

You do not know that the mother does not care about her daughter.

i did not say she did not care about her daughter, I said "really cared".

She may very well disagree with the assessment that the flag hurts her daughter.

Doesn't matter what she thinks or doesn't think - the rock poses a legal threat to her custody of her daughter. If she really cares about her daughter (which would include custody), she'd have gotten rid of it.

 

[laughing dog]

The discussion seems to be along the lines of deciding what is in the best interests of the child vs what is in the best interests of being legal. Seems the court is legally bound to decide what is in the best interests of the child. That makes sense.



So the mom can choose, what, anything? Really? I can think of lots of shit the court would not perceive as being in the child's best interests but is nevertheless all quite legal.

Except “everything” doesn’t have a corresponding right in the U.S. Constitution. Generally, the political or philosophical beliefs of a parent aren’t to be considered in a best interest of a child analysis because of the 1st Amendment speech.

But this case is not about "generally". 1st Amendment speech is not unlimited - there are restrictions.

 

[Jokodo]

I must say, the idea that this woman might just happen to have a white supremacist symbol in her front yard that she never noticed, and once having had it pointed out, refuses to remove it, is construed as some sort of defense of her character. That makes her look worse as a potential caregiver, not better. Like, clearly asleep on the job.

Who is arguing that?

TomC has repeatedly has repeatedly talked about a rock of unknown origin which she may may not have something to do with.

 

[Jarhyn]

I must say, the idea that this woman might just happen to have a white supremacist symbol in her front yard that she never noticed, and once having had it pointed out, refuses to remove it, is construed as some sort of defense of her character. That makes her look worse as a potential caregiver, not better. Like, clearly asleep on the job.

Who is arguing that?

TomC has repeatedly has repeatedly talked about a rock of unknown origin which she may may not have something to do with.

Yeah, like, there is no plausible deniability when it comes to a rock painted with the flag of a country that only existed for the sake of declaring all black people Chattel.

That's abusive to all black people. And it's legal to abuse other black people who are not your legal family by saying this to them with such public speech. It's shitty and should earn some face punches that nobody happened to see, not even that cop looking directly that way, but it's legal.

It is not, however, legal to abuse your spouse, children, or elders.

And no matter how much James wishes to moan and spit and hiss at the idea that a flag that was created specifically to defend the subjugation of black people could possibly constitute an abusive position with regards to ones own child, it stands that a rock out front of the very house they live will be seen, and bring repeated feelings of shame and internalization, and confusion over self-worth.

 

[Jimmy Higgins]

This typically doesn't come up as a white mother of a mixed race African American child doesn't commonly have Confederate stuff lying about the house.

The mother has an expressive speech right to this message. That speech may have “potential impact” isn’t sufficient, as under this standard there’s no speech that can’t be considered. More is needed for a court to consider political, religious, ideological speech/expressive conduct into consideration. The facts in this record do not justify a court considering the expressive speech.

Until the Legal Representative can say it is or isn't impacting the child, we can't know if it is impacting the child.

The intermediate appellate court didn’t order the legal representative to do anything. Whether the legal representative does or doesn’t do what you say is irrelevant to the intermediate court because the intermediate court has told the trial court to consider the expressive speech anyway.

The consideration will weigh heavily on what the child's legal representative says.

You think the trial court is under some obligation to investigate whether the expressive message is impacting the child in a harmful manner. The court isn’t, and the intermediate court didn’t order the trial court to ascertain whether the expressive message did or didn’t, does or doesn’t. The trial court was ordered to consider the expressive message...

...as part of a child custody trial.

“As such, while recognizing that the First Amendment protects the mother's right to display the flag, if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.”

If this were a fair accompli by the appellate court, they wouldn't use the word "factor", as that means to just jostle more data into the custody-o-matic as part of their decision. It must be addressed. Not held as the defining piece of information as to which parent is more suitable to be a parent for the child.

 

[Angra Mainyu]

i did not say she did not care about her daughter, I said "really cared".

You said "As others have pointed out, if this woman really cared about her daughter, that rock would be gone as soon as it was pointed out.". This entails that she does not really care about her daughter (i.e., she doesn't actually care, i.e., in fact, she does not care). But regardless, you do not know that she does not really care about her daughter.

Doesn't matter what she thinks or doesn't think - the rock poses a legal threat to her custody of her daughter. If she really cares about her daughter (which would include custody), she'd have gotten rid of it.

You implied that she did not care ("really care" if you like) about her daughter because she did not remove the rock. Obviously, her beliefs about whether the flag harm her daughter are relevant. Now you're changing the argument, talking about a legal threat to her custody. Well, then, she may well believe it is not a legal threat and she will surely win as the law is on her side.

 

[laughing dog]

i did not say she did not care about her daughter, I said "really cared".

You said "As others have pointed out, if this woman really cared about her daughter, that rock would be gone as soon as it was pointed out.". This entails that she does not really care about her daughter (i.e., she doesn't actually care, i.e., in fact, she does not care).

You are mistaken -really care is more intensive or deeper than "care". For example, I really care about my wife but I only care about my slippers. So, not really caring does not mean not caring.

But regardless, you do not know that she does not really care about her daughter.

I didn't say I did know, so thanks for another irrelevant pedantic point.

You implied that she did not care ("really care" if you like) about her daughter because she did not remove the rock. Obviously, her beliefs about whether the flag harm her daughter are relevant.

You are mistaken - not relevant to my observation.

[
Now you're changing the argument, talking about a legal threat to her custody. Well, then, she may well believe it is not a legal threat and she will surely win as the law is on her side.

No, as usual, you are mistaken. I did not change my argument. If she does not belief it to be legal threat, then she is abysmally stupid, since the judge made it clear to even the most reason-challenged person that its continued existence may alter future decisions by the court.

 

[Angra Mainyu]

I must say, the idea that this woman might just happen to have a white supremacist symbol in her front yard that she never noticed, and once having had it pointed out, refuses to remove it, is construed as some sort of defense of her character. That makes her look worse as a potential caregiver, not better. Like, clearly asleep on the job.

Who is arguing that?

TomC has repeatedly has repeatedly talked about a rock of unknown origin which she may may not have something to do with.

Hmm... TomC first argued that that's not at all like starving a child (which is true), and second he did not say she was on the right here, but that there might be unknown circumstances which would make the situation different. Those circumstances did not seem to be something like 'she didn't know about the rock, was later told about it, and then refused for remove it'.