Parents hovering over their son, calling him by different names.

It’s rare to see parenting cases with constitutional implications, and when the First Amendment is involved, courts must apply a “strict scrutiny” standard. We previously wrote about a Pennsylvania case in which the trial judge ordered a mother to prevent her child from calling her new husband “Dad.”

In Colorado, the First Amendment has been implicated in a case involving religion vs vaccines, but most commonly it arises in cases where a trial court directs the parents to stop a child from calling a stepparent “Mom” or “Dad”, or when the judge tries to enforce a gag order prohibiting one parent from badmouthing the other parent on social media.

What’s in a Name? First Name vs Middle Name

A new case from the Colorado Court of Appeals, released over the winter holidays, presented an unusual situation: can a family law judge issue an order on which part of a child’s legal name must be used? In Javernick, the child’s full legal name was “Javier Reece Teruel” (note that, although children are typically not referred to by an identifiable name in parenting cases, the appellate court did so in its opinion because the child’s name was the central issue).

In the current case, the family law judge ordered the parents to use the child’s full legal name on documents and, on a day-to-day basis, to refer to him only by a variant of his first name, “Javier” or “Javi”. Specifically, using the child’s first name meant the parents were NOT permitted to call him by his middle name, “Reece”.

First Case: Parents Must Use Child’s Middle Name “Reece”

The case’s procedural history is a bit convoluted, and both parents reversed their arguments as their fortunes changed from one hearing to the next. I’ll keep the case history to the most relevant points.

The child shared the same first and last name as the father. and at the parties’ 2020 dissolution of marriage hearing, the trial court found credible the mother’s claim that both parties had referred to the child as “Reece” since birth, with the father only recently starting to call him “Javier” or “Little Javi” as their marriage broke down.

At divorce, the mother originally sought to change the child’s first name to “Reece”, and to add her last name to the child’s birth certificate. She ultimately dropped her request to change his first name, on the condition that both parents call him “Reece”.

Ultimately, the mother was fine with the father calling the child “Javi”, as long as she could continue to use “Reece”, but the trial judge found that using two different names would be confusing to “the poor little boy”.

The father wanted both parents to be directed to call the child “Javi”, and his attorney argued that the trial court had the authority to enter such an order, analogizing it to a non-disparagement clause. The father further objected to the mother’s requests, asserting that she sought the name change to distance the child from him.

Ultimately, the trial judge denied a formal name change, but directed both parents to call the child by his middle name, “Reece,” and required third parties to use that name as well. Notably, for future proceedings, the trial court also adopted the parents’ stipulation that they had joint decision-making responsibility, but in the event of disagreement, the mother had “tie-breaker authority” over medical and educational decisions. Javernick, ❡ 9.

The father appealed the permanent orders, shifting his position to argue that, under the First Amendment, a trial judge lacked authority to direct the parents to use a specific name for the child. The Colorado Court of Appeals, in an earlier unpublished decision, questioned whether such an order was lawful but didn’t directly rule on the First Amendment issue; instead, it remanded the name change to the trial court for further proceedings and additional briefing on the law.

Present Case: Parents Must Use Child’s First Name “Javier”

If the original trial judge was concerned about the confusion caused by parents using different names for the child, the second hearing only compounded it.

On remand, the trial court appointed a parenting expert, who recommended that the parents use the child’s first name “Javier” or “Javi”, rather than his middle name, “Reece”. The judge broadly agreed and in March 2022 ordered the parents to use the child’s full name “in the public eye and in the official records.” However, critical to this outcome, the court of appeals noted that the trial judge did “not specify what that meant with respect to what mother could or could not say to third parties about how she could refer to the child in public settings.” ❡ 45.

At the March 2022 hearing, the parents also agreed to modify their decision-making to joint, without the mother retaining the “tie-breaker authority” she had in their 2020 order.

Neither parent appealed that March 2022 order, but seven months later, the father filed a motion for declaratory relief under Colo. R. Civ. P. 57, arguing that the child was still being called “Reece” at preschool. This time, the mother argued that while she used the child’s full name on legal documents, the court lacked authority under the First Amendment to require teachers, doctors, etc to use a specific name.

In 2023, following a new evidentiary hearing, the trial court issued a “clarification” to its March 2022 order (note the quotation marks – the court of appeals later determined this was a modification, rather than a clarification), directing the parents to tell staff/providers that the child goes by “Javier” or “Javi”, and while the mother may call the child “Reece”, “in all registrations, health care providers, school, and school activities requiring registration, she shall refer to him as Javier or Javi.”

The mother appealed this clarification order, arguing both that the trial court lacked authority under Colo. R. Civ. P. 57 to modify its March 2022 order, and that directing her to use a specific name violated her Constitutional rights.

C.R.C.P. 57 Declaratory Relief vs Decision-Making Change

Quoting from a Colorado Supreme Court decision, the appellate court noted that the “primary purpose of [the] declaratory judgment procedure is to provide a speedy, inexpensive, and readily accessible means of determining actual controversies which depend on the validity or interpretation of some written instruction of law.” ❡ 27.

The court of appeals analyzed the child’s name issue under the decision-making framework. And since the Uniform Dissolution of Marriage Act (UDMA) has a specific section, C.R.S. 14-10-131 for modification of decision-making authority, that statute, and not the declaratory judgment rule, would apply:

“when parents have joint-decision making authority — to which the parents had stipulated before the court decided the name dispute — the court must first determine whether the standards in section 14-10-131 are satisfied before analyzing whether one parent may be allocated sole decision-making authority with respect to the disputed issue. Only once these steps are followed and there remains an impasse is the court authorized to act as a tiebreaker.”
Javernick, ❡ 28.

Thus, rather than using a court procedural rule (C.R.C.P. 57) to modify its March 2022 order, the trial court should have analyzed the issue under the specific substantive statute regarding parental decision-making, C.R.S. 14-10-131.

Party Presentation Principle Violated?

Now we’re in real technical territory, but the court of appeals normally addresses only issues actually raised by the litigants. And both parties framed the 2023 name-change “clarification” as a C.R.C.P. 57 declaratory judgment issue, not a decision-making issue under C.R.S. 14-10-131.

But enough was enough, and it was time to end this case with clear legal guidance, even if the parties themselves didn’t raise the issue:

“The party presentation principle, however, does not obligate us to perpetuate parties’ erroneous assertions of the law, nor does it require us to sit by and allow the district court to guess a course of action as to the correct governing law.
We could simply vacate the court’s order and conclude that C.R.C.P. 57 was an improper vehicle to decide the name issue, without informing the court of the correct legal standard. This was the approach the prior divisiontook. Certainly, at times, this court uses such broad language to provide the parties and district court with flexibility to conduct further proceedings on remand. But the complexity of this issue and the longstanding nature of the parents’ dispute on this specific issue counsel us to take a more directive approach. Particularly because this is the parents’ second appeal on this issue, we are loath to simply reverse the order without explaining why C.R.C.P. 57 was inapplicable and that the court should have applied section 14-10-131(2) to resolve the parents’ name dispute.”

Javernick, ❡❡ 31-32 (Cleaned Up).

Decision-Making Under the UDMA

Once a court has established decision-making, that existing decision-making order can only be modified by satisfying one of the five factors set out in C.R.S. 14-10-131(2), which include the parties agreeing, the child is integrated into one family’s household, parenting time was modified, etc. (For more details, see our decision-making article in the Colorado Family Law Guide).

At the time of the March 2022 name change order, the parents had agreed to modify decision-making to joint. And neither party appealed the ultimate order (until much later, after the father filed his motion to “clarify” it and the court modified the 2022 order).

The problem was that the new order issued in 2023 was not a mere clarification, but was instead broader than the March 2022 order; it expanded that order by requiring the parents to publicly use the child’s first name, whereas the March 2022 order merely required his full legal name to be used on records.

This modification of decision-making required showing that the child would be endangered without the change, an analysis the trial court did not perform (and, for what it’s worth, is a pretty tough standard to meet). Hence, the Court of Appeals reversed the December 2023 order that required the parents to use the name “Javier” in public settings.

Must Prove Harm to Overcome First Amendment

As the mother also raised constitutional issues, the court of appeals delved into the messy First Amendment implications of a court restricting what a parent can call their child.

Preamble to the U.S. Constitution

The trial court explicitly found that there was insufficient evidence of harm to restrict the mother’s free speech rights, but found that ordering her to use the child’s first name only in public settings did not implicate the First Amendment.

The Court of Appeals disagreed – it’s one thing to order the parents to use a child’s legal name on official records, but limiting what a parent called their own child did infringe upon their freedom of speech, and required a Constitutional analysis.

While trial courts have wide latitude to enter orders in children’s best interests, including name changes, the parents enjoy freedom of speech under the First Amendment. And since this case involves the conflict between those two principles, the trial court noted that under its prior McSoud decision (which we discussed in this post regarding child vaccines vs religion), a court could only limit a parent’s fundamental rights (in that case, freedom of religion, and in the present case, free speech) with proof that the child would be harmed by the parent exercising those rights.

As the court of appeals already reversed the trial court based on not following the statutory requirements for modifying decision-making, it did not need to rule on the Constitutional issue, but discussed that issue so if the trial court did decide it was appropriate to modify decision-making under C.R.S. 14-10-131, the judge would then also do a First Amendment analysis before restricting how a parent referred to their child.

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