Fingers pointing at young boy

In the early 2000s, parenting plans would sometimes include clauses which required a parent after divorce to make sure the children did not call a stepparent by a parental term such as “Dad” or “Mom.” The theory was that a child has only two parents, and elevating a stepparent in this way diminished the role of the other parent, and was therefore a form of parental alienation.

Courts Typically Hands-Off

Fast forward to 2023, and those orders are much rarer. I’ve had cases where a parent has complained about his kids calling their stepparent by a moniker implying a parental relationship, but most of the time courts do not enter orders prohibiting the practice. Experts have come around to the position that children will pick their own term for an adult figure in their life, and a parent should not stomp on that or correct the child as if she is saying something bad.

And this might explain the paucity of reported decisions, at least in Colorado. I’ve found no reported appellate family law decisions on children calling a stepparent “Dad”, but there is one criminal case where a man was convicted of sexually assaulting the daughter of his girlfriend. And the Colorado Supreme Court noted that he “acted like a stepfather to the victim; she referred to him as ‘dad,'” remanding the case back to the trial court to determine whether this constituted promoting a relationship with the victim for purposes of the sexually violent predator statute. Uribe-Sanchez.

Note that while child custody cases addressing the children calling a stepparent “Dad” are rare, they are not completely gone. I just had a case last month where the Parental Responsibilities Evaluator dinged the mother because the preschool-aged children called her new husband “Daddy Nick” (not the real name from the case). It would be one thing if this were part of a lengthy pattern of parental alienation whereby the mother was carving the children out of the father’s lives, but it wasn’t. And despite that, the family law judge disapproved of the practice and entered additional orders to make sure the children would not confuse their father vs stepfather.

Pennsylvania – Cannot Ban Child Calling Stepparent “Dad”

So it was with some vindication that I read Rogowski, a decision last month issued in Pennsylvania. The mother and father were divorced, with the mother being the primary residential parent over their child (who was about 8 at the time of the decision), with the father who lived in a different city having weekend parenting time and sharing holidays and vacations.

The mother had remarried, and had two children with her new husband, the stepparent to the child at issue.

The father filed a motion for equal parenting time, and among the evidence at trial was that the mother did not discourage the child from calling stepfather “Dad” or “Daddy.” The trial judge found this to be part of a pattern of the mother diminishing the father’s role in their child’s life, and issued the following order:

“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.”

Rogowski, at 16.

The trial court also granted other relief requested by Father, and the Mother appealed on several grounds.

First Amendment Right to Call Stepparent “Dad”

The mother argued that restricting the child’s use of terms such as “Dad” or “Mom” to describe a stepparent was an infringement of the child’s 1st Amendment right to freedom of speech. (We have discussed the extent to which the First Amendment may protect a parent who disparages the other parent, but not the child’s speech).

And the appellate court found that the order did trigger the First Amendment, thereby requiring strict scrutiny:

“In so ordering, the trial court restricted the Child’s use of the terms “Mom,” “Dad,” or a derivative thereof, as applying to only the Child’s biological parents. As such, we find this restriction to be a content-based restriction because the purpose of the restriction was to limit the message that the Child conveyed through 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. Therefore, this restriction is subject to the strict scrutiny standard.”

Rogowski, at 16-17.

As lawyers will tell you, the “strict scrutiny” is a tough standard to overcome. And in this case, mere best interests of the child alone were not sufficient to warrant curbing the child’s constitutional rights – instead, there needed to be a finding of harm:

“The trial court, in imposing a restriction on the Child’s speech, did so in an attempt to further Pennsylvania’s interest in protecting the Child’s mental and psychological well-being by maintaining and strengthening the strained relationship between Child and Father. We cannot, however, agree that the restrictions the trial court placed on the Child’s use of the terms “Mom,” “Dad,” of a derivative thereof, were narrowly tailored to further Pennsylvania’s compelling interest absent a finding by the trial court that the use of the term “Dad” or “Daddy” to refer to Stepfather caused harm or will cause harm to the Child. Indeed, 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 stepparents were central to that process. Without a finding that the Child’s use of the terms “Dad” and “Daddy” to refer to Stepfather posed a tangible risk of harm to the Child, we are constrained to vacate the content-based restriction imposed by the trial court.”

Rogowski, at 18-19.

Encouraging vs Allowing Child to Call Stepparent “Mom”?

Cartoon family inside of home.

The Rogowski decision did not address any distinction between a child voluntarily, on his own, deciding to call a stepparent “Dad” versus the parent actively encouraging the child to use that term. Parents are frequently subject to no-disparagement clauses, at least in the presence of the children, so prohibiting a parent from actively encouraging use of parental monikers for stepparents seems like it would pass free speech concerns, as least as long as the child is not confused who his real parent was. But again, I’m not aware of any cases specifically addressing this point.

Covid-19 Vaccine Decision-Making

The trial court also issued an order giving the father “limited sole legal custody to make medical decisions” whether the child should receive Covid-19 vaccines or boosters. As the mother did not appeal that portion of the order, there is no additional case law on this point to add to our Vaccination & Parenting article in the Colorado Family Law Guide.

Hat tip to one of my favorite legal blogs, the Volokh Conspiracy, for alerting me to the Rogowski case.

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