My one-man war against overly broad restraining orders continued this week, as I observe an accelerating trend towards guardians, litigants and judges wanting to micro-manage the small details of parenting. At a recent mediation the mediator assumed my client would agree with the guardian’s recommended restraints. Included in those recommendations were requests that the parents:
- not expose the children to sexually explicit TV, movies, books or other sexually explicit content
- be restrained and enjoined from exposing the girls to violent conduct or language
In counseling my parent-clients whether to agree to restraining orders, I start with the assumption that violation of these restraining orders will be treated as criminal contempt. This was the recent experience of our mediator, who had seen an opposing party recently incarcerated for overnight paramour exposure. I also believe treating such violations as criminal contempt is thoughtful jurisprudence, as one really cannot adequately remedy the condition with mere civil contempt. However, because such violations are being treated as criminal contempt, I counsel my clients to be very careful about agreeing to overbroad, vague or unduly intrusive restraining orders.
When the mediator noted surprise to my objection to what are becoming routine restraints, I posited a series of questions to him:
1. What exactly is violent language?
2. Is kissing “sexually explicit”?
3. Isn’t the type of simulated sex one sees in most PG-13 romantic comedies “sexually explicit”?
4. Do we really expect my client not to allow his daughters to see such movies when they are teenagers? [one could make a similar point about young adult novels such as the “Twilight” series]
The mediator acknowledged that he couldn’t answer the first two questions and that the answer to the third question was “yes” and fourth question was “no.” He stopped questioning why my client shouldn’t agree to such restraints. Instead we resolved these concerns with the following restraints:
- Neither party shall expose the minor children to domestic violence.
- Neither party shall expose the minor children to pornographic materials.
Those restraints I understand and believe my client understands. Admittedly the definition of “pornographic” can be a bit vague but to, cite Supreme Court Justice Potter Stewart’s opinion in Jacobellis v. Ohio, 378 U.S. 184 (1964), “I know it when I see it.”