Facts
- Stanley M. Shepp (father) and Tracey L. Shepp (mother) divorced in 2001; their daughter was born in 1993.
- After the separation, the child lived primarily with the mother.
- Father practiced “Mormon fundamentalism,” including a belief in “plural marriage,” and testified he had discussed with the child the possibility of additional wives in the family.
- Mother objected to father’s discussions of polygamy because polygamy is prohibited by Pennsylvania’s bigamy law.
- Father sought shared legal and physical custody; an interim order granted shared legal custody with primary physical custody to mother.
- The Superior Court later imposed a condition prohibiting father from discussing or advocating polygamy with the child until age 18.
Issues
- Whether a custody court may restrict a parent from discussing or advocating religious beliefs in polygamy with a minor child because acting on those beliefs could violate criminal law.
- What evidentiary showing is required before a court may impose a content-based restriction on a parent’s religious speech to a child in a custody matter.
- Whether a blanket ban on all discussion or advocacy of polygamy until the child reaches adulthood is constitutionally permissible.
Decision
- The Supreme Court of Pennsylvania vacated the Superior Court’s blanket restriction barring father from discussing or advocating polygamy with the child until age 18.
- The court held that illegality of the conduct (bigamy) does not, by itself, justify censoring abstract religious advocacy within the parent-child relationship.
- The court required a specific showing that the speech poses a substantial threat of present or future physical or emotional harm to the child before restrictions may be imposed.
- The case was remanded for further proceedings consistent with that standard, leaving open the possibility of a narrower restriction if supported by evidence.
Legal Principles
- A parent’s speech to a child about religious beliefs is strongly protected under the First Amendment and the Pennsylvania Constitution, even when the beliefs relate to conduct that would be illegal if carried out.
- Content-based restraints on a parent’s religious advocacy in custody proceedings require an evidence-based finding that the speech poses a substantial threat of present or future physical or emotional harm to the child.
- “Best interests of the child” does not permit suppression of constitutionally protected parental religious speech without a concrete showing of harm or likely harm.
- Courts must distinguish abstract advocacy or religious explanation from speech that amounts to incitement, coercion, or direction to engage in unlawful conduct.
- Any permissible restriction must be narrowly tailored to the demonstrated risk and cannot take the form of a broad, categorical gag order unsupported by record evidence.
Conclusion
The court held that custody courts may not impose a blanket prohibition on a parent’s religious discussion of polygamy with a minor child solely because polygamy-related conduct is criminal; restrictions require specific proof that the speech threatens substantial present or future harm and must be narrowly drawn.