A 2006 Associated Press Profanity Study found that 79% of surveyed adults either regularly or occasionally used swear words in conversations, including 64% who specifically employed the “F” word.(1) Undoubtedly, many of those surveyed were parents. Like everyone else, certain parents utilize profanities, and some even curse at or in the presence of their minor children. That swearing may not present a problem while parents remain together; but when couples split, one may assert the other’s profane language as a basis to seek child custody. This article explores the extent to which a parent’s cursing can impact child custody determinations.
In Georgia, at least, a dearth of published appellate decisions addresses a parent’s profanities in a child custody battle. A recent case addressing the issue involved an award of child custody to paternal grandparents on a petition against their former daughter-in-law. The trial court based its decision in part on the mother’s use of the “F” word in front of the child and on social media, and on mother’s calling the grandparents profane names. In reversing that ruling, a divided Georgia Court of Appeals held that neither those facts nor other findings supported the trial court’s conclusion that the grandparents had met their burden of showing, with clear and convincing evidence, that the child would suffer either physical harm or significant, long-term emotional harm if custody remained with her mother. The appellate Court particularly noted a guardian ad litem’s testimony that he was not bothered by mother’s language and his opinion that mother had done a fine job raising the child. The appellate Court also noted the absence of any evidence from the grandparents showing that a parent’s use of profanity can result in emotional harm to a child. As the Court added, “if merely using profanity can cause a parent to lose custody, the majority of parents might be in danger of losing custody of their children.”(2)
While Georgia’s appellate courts have yet to address profanities in a custody dispute between competing parents, courts in other jurisdictions have discussed that subject. In states applying standards for modifying child custody similar to Georgia’s, courts have examined the timing of the profanities and their impact on the parties’ children. For instance, a mother’s tacit approval of her boyfriend’s profane social media posts, and use of profanity toward or in the presence of her children, could not underpin a change in custody from mother to father, where the boyfriend’s actions either had taken place before the parents’ divorce or had been ongoing since before the divorce.(3) A mother’s use of profane, demeaning language toward the father in the presence of their child, subsequent to the last custody award, could support a change in custody though, since mother’s alienating conduct evidenced her unwillingness to facilitate and encourage a close and continuing relationship between father and child contrary to the child’s best interests.(4) In contrast, a mother’s cursing in her child’s presence was found insufficient to establish a material change in circumstances adversely affecting the child, as required to change child custody, where the child continued to perform well in school and remained in good physical and mental health.(5) Likewise, a mother’s occasional use of profanity and name-calling directed at her daughters, when she was angry, could not establish the requisite substantial change in circumstances to modify child custody, where the children’s well-being had not been adversely affected, and they continued to thrive and remain healthy under the prior custody arrangement.(6)
(1) https://www.ipsos.com/sites/default/files/news_and_polls/2006-03/mr060328-2.pdf. (2) Fyffe v. Caine, A19A1162 (2) (Ga. Ct. App., October 30, 2019) (Physical Precedent Only). (3) Bonds v. Bonds, 529 S.W.3d 671, 677 (2017) (Ark. Ct. App. 2017). (4) State v. Knapp, 216 So.3d 130, 150-151 (La. Ct. App. 2017). (5) Shows v. Cross, 238 So.3d 1224, 1232-1233 (Miss. Ct. App. 2018). (6) In re Nelson, 888 N.W.2d 681 (III.A.) (Iowa Ct. App. 2016).