As it stands, the US legal system promotes a largely hands-off approach to regulating the internal affairs of families. Parents have the liberty to determine how they intend to raise their children, dictating their day-to-day activities and often aligning their children under their own preferred religious beliefs, cultures, and value systems. It is only in limited circumstances that the legal system gets involved and attempts to intervene for the child’s benefit. In these circumstances, a standard of promoting the “best interests of the child” has been established, in which the court decides how to move forward depending on what they deem is best for the child, even if they contradict parental desires or wishes. However, this leaves the responsibility of decision-making up to the courts’ discretion.
Numerous legal cases address conflicts between parental rights and the court’s determination of the best interests of the child, particularly in Child Protective Services (CPS) abuse investigations. While these cases occasionally touch on children’s rights — such as their right to live without the threat of harm or exposure to unsafe living conditions — they rarely engage in a direct examination of how the court proceeds in cases where parents infringe upon their children’s constitutional rights, often under the justification of protecting their children. In these cases, parental and societal desires to defend the privacy and stability of parent/child relationships outweigh their child’s constitutional rights, such as their First Amendment right to the freedom of speech. This article will examine the use of speech-restrictive interview policies by CPS, which hinge upon parental permission to promote the security and autonomy of the family unit, and reflects the intent behind these policies onto discussions about the recent Pennsylvania Superior Court case Rogowski v. Kirven.
I. BACKGROUND: PARENTAL CONSENT TO CPS INTERVIEWS
In many instances, children require parental permission or consent to exercise their freedom of speech. This requirement is visible in various realms, such as children’s social media regulation, but also in more directly impactful areas like child protective agency interviews. It is standard procedure for a majority of CPS agencies to first receive consent from the parents of children they hope to conduct interviews with before they investigate potential instances of child abuse. Unless there is a clear and imminent threat of danger to the child or the social worker has a Court Order, CPS can only conduct interviews if the parents have provided CPS consent.[1]This requirement comes with an overwhelming flexibility and preference for the parent’s voluntary participation and respect for their right to refuse their child’s participation. Parents can set the terms under which the interview occurs, such as its duration, location, and who is present during the interview, and this must be respected by CPS interviewers.[2]Additionally, parents have the option of consenting to only one interview, eliminating the possibility of CPS repeatedly interviewing the minor.[3]These accommodations are made with the assumption that parents will permit their child to participate in CPS interviews, despite the fact that this permission must often come from the alleged perpetrator of the abuse themselves.
Suppose a parent refuses to allow a CPS worker to enter the home and/or observe or talk to any child. In that case, CPS can assess alternative steps to take, such as contacting the family court, seeking an immediate order to gain access to the home and/or child, and/or contacting law enforcement to remain where the child is present until the order is processed.[4]While addressing whether removing the parents’ ability to refuse a child interview would impact CPS’ efficacy, the very existence of an ability for parents to opt their children out of potentially intrusive interviews has implications for a child’s First Amendment rights.
By allowing parents to prohibit interviews, children are effectively silenced in some of the most pressing and potentially life-threatening situations. Barring them from communicating with authorities and accessing immediate help in instances of abuse is an appalling infringement upon not only a child’s freedom of speech but, ultimately, their ability to secure a safe living environment and their ability to seek justice for the crimes committed against them. These two arguments are often justified by the need to secure a child’s best interest. However, the desire to protect a child’s freedom of speech is often neglected in CPS interviewing policies. This is because of the prioritization of the stability of the home and the hesitancy to intervene in private family relationships, unless it is deemed necessary to immediately protect the child from harm. Unless the child is in danger of imminent psychological or physical harm, it appears the courts often refrain from challenging a parent’s right to privacy in their parenting and uphold their ability to restrict their child’s speech without government agency intrusion.
While the government cannot compel speech from either the parent or child, the fact that a parent can silence the child — even when the child and the parent’s interests are assumed to be in conflict — enables the parent’s familial privacy rights to overshadow their child’s right to free speech against them. A child’s constitutional rights are secondarily important to uphold when they conflict with their parent’s rights. So long as the child’s well-being is sufficiently ensured and they are not in imminent danger, the court will not intervene when parents restrict their child’s rights or, in this case, refuse interviews on their behalf.[5]
II. ROGOWSKI v. KIRVEN — TRIAL COURT RULING
If CPS must still respect a parent’s ability to restrict their child’s speech in abuse situations, it follows that a recent child custody case similarly upheld parental wishes to regulate speech. In the 2023 case Rogowski v. Kirven, the trial court initially upheld a parent’s ability to restrict their child’s speech in a non-threatening child custody situation. Their justification was the same as that of CPS: preserving a child’s best interests and the stability of familial relationships.
When Rogowski v. Kriven was first introduced to the Court of Common Pleas of Allegheny County, Pennsylvania, in 2022, the court found mother Summer Rogowski to behave in ways that “diminish[ed] Father’s [David Kirven] place and authority in the Child’s life.”[6] She took actions like baptizing their minor child without the father’s knowledge, not informing him about chiropractic appointments, and not discouraging the child from calling her new husband and the child’s stepfather “Dad” or “Daddy.”[7]Despite never telling the child explicitly to call their stepfather “Dad,” she expressed a hope that in the future, her children — born by both Kirven and the stepfather — will “refer to him uniformly” as “Dad.”[8]Kirven (Father) took issue with Rogowski’s actions and ultimately convinced the court that he should be the sole individual referred to as “Dad” by the child. The trial court weighed in, suggesting that:
“Mother’s desire that the Child refer to someone other than Father as ‘Dad’ or ‘Daddy’ is concerning. It is unreasonable for Mother to expect that Father share the title ‘Dad’ with Stepfather, particularly in light of evidence that Mother has acted in ways to diminish Father’s role in the Child’s life.”[9]
As a result, they implemented a provision mandating that:
““The parties shall not encourage the Child to refer to anyone other than the parties as Mother, Mom, Father, Dad, [et cetera.] In the event the Child refers to a party’s spouse or significant other in such a way, that party shall correct the Child.”[10]
It was the trial court’s belief that in imposing a restriction on the child’s speech and their ability to call the stepfather “Dad,” they would “further Pennsylvania’s [well-established] interest in protecting the Child’s mental and psychological well-being by maintaining and strengthening the strained relationship between Child and Father.”[11]They note, however, that “[A] state’s compelling interest to protect a child … is not triggered unless a court finds that [the] speech [to which a restriction is addressed] caused or will cause harm to a child’s welfare.”[12]The trial court settled upon this ruling and found that the child’s speech is restricted for a compelling state interest, mandating that the child refer solely to their biological parents as “Mom” and “Dad.”
III. ROGOWSKI v. KIRVEN RECONSIDERED — SUPERIOR COURT RULING
In 2023, the Superior Court of Pennsylvania vacated the part of the custody order concerning the child’s use of “Mom” and “Dad.” Rogowski filed a second motion for reconsideration, asking the court to vacate the part of the court order that “requir[ed] the parties to correct the Child’s use of names like ‘Mom’ and ‘Dad’ for the parties’ significant others.”[13] The superior court granted a review, which would intend to identify a “gross abuse of discretion,” which is only be found if the trial court “overrides or misapplies the law, or exercises judgment which is manifestly unreasonable, or reaches a conclusion that is the result of partiality, prejudice, bias[,] or ill[-]will.”[14]
In their review, the superior court found that the trial court’s restriction of the child’s speech was a content-based restriction. Content-based restrictions are characterized as the government regulating speech “because of the topic discussed or the idea or message expressed.”[15]This restriction was defined as content-based because “the purpose of the restriction was to limit the message that the Child conveyed through the use of the terms ‘Mom’ or ‘Dad’ to denote a biological, familial relationship with the person rather than a non-biological, familial relationship as exists in the case of a step-parent.”[16]Content-based restrictions are “presumptively unconstitutional” and must be narrowly tailored to “serve a compelling state interest.”[17]As a result, they state that this order is subject to the strict scrutiny standard and should only be implemented in the least restrictive manner for a compelling reason.
By applying the strict scrutiny standard instead of promoting the child’s “best interest” as the trial court did, the court focused on whether limitations on a child’s freedom to use “Mom” and “Dad” were narrowly tailored to prevent one parent from undermining the child’s relationship with the other parent. Here, the court found that they cannot uphold the restrictions on speech implemented by the trial court because they lacked a “finding by the trial court that the use of the term ‘Dad’ or ‘Daddy’ to refer to the Stepfather caused harm or will cause harm to the Child.”[18]
In other words, while it is understandable for the court to ensure that the child has access to strong, healthy relationships with both parents, it is unclear how monopolizing the child’s usage of the term “Dad” solely towards their biological father directly protects the physical or mental health of a child. Similarly, it is unclear how the child’s use of “Dad” to refer to both the child’s biological father and stepfather infringes upon the child’s wellbeing or strains the relationship between the child and biological father.
There was no evidence presented to the court that frays in the parent/child relationship were caused by the child’s usage of the term “Dad” towards the stepfather, nor was there any indication of confusion using the term towards their biological father. The major sources of strain upon the child’s relationship with the biological father appear to primarily derive from the actions taken by the mother (such as baptizing the father without his permission) rather than the language utilized by the child. The superior court affirms that “the text of the trial court’s order suggests that the trial court was concerned that the parents’ mutual ill-will and mistrust may have cultivated unhealthy bonds between the parents and the Child, not that the terms the Child used to refer to her parents and step-parents were central to that process.”[19]
In addition, this speech restriction differs from other types of interventions in speech, which could arguably lead to strain upon the child/parent relationship during child custody cases, such as when the court orders parents to refrain from using alienating speech to turn a child against the other parent. In this case, while there may be a surface-level justification for securing the “Dad” title for exclusive use by the biological father, it is unclear that the court can justifiably have a place to rule upon this matter and even enforce such a ruling restricting a child’s speech.
As a result, the Superior Court vacated the restriction on the child’s use of the terms “Mom” and “Dad,” concluding that “how, and by what term, a child refers to a significant person in his or her life should be set by the personalities and characters of the child and that person, and the term should not be used as a weapon by others to deter the child’s relationship with that person.”[20]
IV. FURTHER CONSIDERATIONS REGARDING CPS, “BEST INTEREST,” AND STRICT SCRUTINY
As a result of the movement from the trial to the superior court, the speech restriction ordered by the court evolved from a “best interest” question into a question of strict scrutiny. The superior court realized that while they intended to promote the best interests of the child and ensure strong relationships between the biological parents and child, they could not go as far as infringing upon the child’s First Amendment Free Speech rights in order to do so. They found that this content-based restriction was not immediately necessary to promote the child’s well-being, and as a result, had to vacate the order.
While child custody cases mandating certain speech may not be particularly pressing instances where a child’s well-being can be dramatically affected, children trapped in abusive situations with their parents do pose more impactful situations. While the courts are unable to mandate an order regulating a child’s speech and compelling them only to use “Mom” and “Dad” to refer to their biological parents, they do allow parents to silence their children in potential instances of abuse. Reflecting on the Rogowski v. Kirven case, it may be possible to argue that the court’s role in upholding parents’ decisions to refuse potentially life-saving interventions (in the form of CPS interviews) for their children is a content-based restriction of free speech. As noted in Rogowski v. Kirven, “a restriction is content[-]based if either the face of the regulation or the purpose of the regulation is based upon the message the speaker is conveying.”[21]Much of the reasoning behind why parents refuse to allow their children to participate in these interviews is because it could potentially strain their relationship, by breaking into the privacy of their relationship/home, subjecting their family to unnecessary government intervention, and/or allowing them to conceal the abusive acts taken against their children and avoid legal repercussions.[22]
It may be defendable that CPS interviews are narrowly tailored to make pointed questions about a potential instance of abuse and, as a result, focus solely upon the topic of abuse. It is unclear that abuse interviews subject children to extensive or harmful questioning that leaves a lasting impact upon them. However, even if there is a burden imposed, it would be a mistake to claim that these brief interviews impose more harm than the potential abusive acts that may harm the child. Similarly, the strain that may be imposed upon the family by potentially sowing seeds of doubt and/or privacy concerns due to a CPS interview are dramatically outweighed by the strain already present in abusive family home environments.
In other words, it’s unlikely functional families without abuse would find interviews without parental permission posing a significant burden on the family. While they can be fear-inducing conversations, brief interviews about potential abuse will not inevitably cause harm to a child’s welfare, especially if the welfare worker has just cause (which outweighs any minor discomforts that may come with discussing these topics). However, the burden of restricting a child’s speech — and potentially resulting in a child’s psychological or physical harm — arguably outweighs any parental desire to refuse intervention.
V. CONCLUSION
As noted in Rogowski v. Kirven, the primary goal in all child custody matters is to uphold the “best interest of the [child] involved.”[23]While using the courts to promote a child’s best interests is admirable, and sometimes necessary, it can also lead to wrongful infringements upon a child’s freedom of speech. In both Rogowski v. Kirven and CPS interview requests, the restriction placed upon a child’s speech is implemented under the guise of promoting their psychological and physical well-being and/or strengthening a child’s relationship with their parents. CPS affirms the parent’s ability to refuse interviews on behalf of their child, even when CPS has reason to believe that an incident of abuse occurred. Therefore, the courts respect the privacy and autonomy of the parents to restrict their child’s freedom of speech unless there is an imminent threat to their child’s life.
In the child custody case Rogowski v. Kirven, the trial court initially followed a similar route by enforcing an order that allows the parents to restrict their child’s ability to exercise their free speech rights, intending to preserve or restore the bond of a child and their biological father. However, this order — made for the “best interest” of the child — is vacated by the superior court when the strict scrutiny test is applied. The court found that the order imposes a content-based restriction on the child’s speech, which was not warranted by a sufficiently compelling state interest. In other words, the court was unable to legally force the child to use the terms “Mom” and “Dad” solely when referring to their biological parents.
Similarly, then, it can be argued that in CPS interview proceedings, parents should potentially not have such a strong influence that they can restrict their child’s speech and ability to seek help in abuse situations. Ultimately, because the CPS interview refusal narrowly restricts speech about potential abuse that the parent committed against the child, there is not only a conflict of interest but also a content-based restriction that should be held to the strict scrutiny standard, not solely that of the child’s “best interest.”
[1] “CPS Manual | Child Protective Services | OCFS.” Accessed January 26, 2025.
[2] Wolff, Julie O. “Can CPS Interview Your Child at His/Her School?” Minella Law Group (blog), May 29, 2024.
[3] Ibid.
[4] “CPS Manual | Child Protective Services | OCFS.” Accessed January 26, 2025.
[5] “CPS Manual | Child Protective Services | OCFS.” Accessed January 26, 2025.
[6] Rogowski v. Kirven, 725 WDA 2022, 2 (Pa. Super. Ct. 2023).
[7] Id. at 17.
[8] Id.
[9] Id.
[10] Id. at 16.
[11] Id. at 18.
[12] Id. at 16.
[13] Id. at 3.
[14] “Ottolini v. Barrett, 954 A.2d 610 | Casetext Search + Citator.” Accessed January 26, 2025.
[15] Rogowski v. Kirven, 725 WDA 2022, 15 (Pa. Super. Ct. 2023).
[16] Rogowski v. Kirven, 725 WDA 2022, 16-17 (Pa. Super. Ct. 2023).
[17] Rogowski v. Kirven, 725 WDA 2022, 15 (Pa. Super. Ct. 2023).
[18] Rogowski v. Kirven, 725 WDA 2022, 18 (Pa. Super. Ct. 2023).
[19] Rogowski v. Kirven, 725 WDA 2022, 18-19 (Pa. Super. Ct. 2023).
[20] Rogowski v. Kirven, 725 WDA 2022, 19-20 (Pa. Super. Ct. 2023).
[21] Rogowski v. Kirven, 725 WDA 2022, 16 (Pa. Super. Ct. 2023).
[22] Hager, Eli. “In Child Welfare Cases, Most of Your Constitutional Rights Don’t Apply.” ProPublica, December 29, 2022.
[23] Rogowski v. Kirven, 725 WDA 2022, 15 (Pa. Super. Ct. 2023).
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