The Impact of Parents’ Involvement in Pornography on Child Custody

From yesterday’s decision in Killebrew v. Gardner (opinion by Judge James Gardner Colins, joined by Judges Judith Ference Olson and Victor P. Stabile):

Note the complicated answer to the question in the post title:

  1. The mother apparently lost all in-person contact with the child for six months (Feb. 26, 2020 to Aug. 25, 2020).
  2. She then had sharply reduced parenting time with the child for seven more months (Aug. 25, 2020 to Mar. 30, 2021), though she then regained the roughly half-and-half parenting schedule that had been in place over the preceding years.
  3. She didn’t recover full shared legal custody for over two more years (Mar. 30, 2021 to June 27, 2023).
  4. She was ordered to shut down her OnlyFans account (presumably on pain of losing any chance to regain access to her child).
  5. But ultimately the appellate court concluded that the trial court didn’t act unreasonably in returning custody to her.

Items 1 and 4 strike me as hard to justify, especially since creating pornography is generally protected by the First Amendment (unless it depicts children, or is so hard-core as to qualify as unprotected “obscenity,” and nothing in the opinion suggests that was so). If there was real evidence that the child was being mistreated—e.g., by being depicted in the OnlyFans videos—that would have justified a temporary loss of access, but only for so long as was needed to verify that this isn’t happening. (For more on my views about parents’ free speech rights in child custody cases, see this article, though it discusses other kinds of fact patterns.)

To be sure, I can expect that many children might be upset to later learn that their parents had done porn, whether because they hear about it from classmates or see it themselves. But children might be upset about their parents’ having done all sorts of things; I don’t think that this concern about children’s potential disapproval or embarrassment (or hypothetical future strain on the parent-child relationship caused by such disapproval or embarrassment) should be a basis for a legal reduction in a parent’s custody rights.

Item 5 thus seems to me quite correct. But I’d love to hear what others think.