by: Peter J. Gallagher (@pjsgallagher)
This was, literally, the question before a Law Division judge in Zoe v. Zoe. In that case, the parents of an eleven-year-old girl were in the midst of ongoing litigation over physical custody of their child when the mother took her daughter to a Pink concert at the Prudential Center. The father claimed that the mother abused her parental discretion by doing so because the concert was not age appropriate. Specifically, the father claimed that there was profanity in some of Pink’s songs and that the concert included sexually suggestive themes and dance performances. He claimed that if he had been at the concert with his daughter, he would have walked her out rather than let her stay.
The court rejected the father’s claims and held instead that: (1) after divorce, each parent has a right to exercise reasonable parental discretion over a child’s activities; (2) after divorce, each parent has a constitutional right to exercise reasonable parental discretion in introducing and exposing their child to the creative arts; (3) the court will generally not interfere with decisions made by parents that are consistent with these rights; and (4) the decision by the mother in Zoe was a reasonable and appropriate exercise of her rights.
Prior to reaching these conclusions, however, the court engaged in a lengthy and wide-ranging review of a number of relevant social and legal issues. It began by observing that the court system is “inundated” with ex-spouses who complain about each other’s parenting skills and decisions, which generally boil down to “one parent, or sometimes each parent, attempting to micromanage how the other parent raises the child during his or her own parenting time.” The court noted that these disputes often involve highly subjective issues, such as: what the child eats – “pizza or fast food vs. ‘healthy’ meals”; what clothes the child wears– “grass-stained ‘dirty’ jeans vs. ‘clean’ or ‘presentable’ pants”; what movies or television shows the child watches – “’edgy’ programs vs. ‘wholesome’ family material. But the court held that it is not its role to resolve these disputes. Instead, each parent has the right to exercise reasonable discretion on them so long as the choices do not unreasonably compromise a child’s health, safety, or welfare.
The court then discussed, at length, the evolution of rock music from something that was feared to something that is now honored. The court took judicial notice that “historically, rock music has often involved socially controversial lyrics and themes, as well as what some people have at various times considered to be suggestive songs and performances.” This reputation for suggestive songs and performances led some towns, in the early days of rock and roll, to ban rock concerts as being contrary to the public safety. (This included Asbury Park, New Jersey, the formative home of Bruce Springsteen and the E Street Band, whose music and lyrics now frequently appear in case law and legal scholarship.) The court also discussed how this image of rock and roll led television network executives to order that producers of the Ed Sullivan Show only film Elvis Presley from the waste up “so the audience could not see Elvis’ gyrating hips.” Nonetheless, the court noted that this image had changed, and it took judicial notice that “rock has grown into one of the most popular, deeply engrained, and culturally significant forms of creative artistic expression in the history of the nation and world.”
The court reviewed the Pink concert against this historical backdrop. It noted that parents are free, within the bounds of reasonable parental discretion, to allow a child to hear profanity, and that often times, profanity is just a small part of a larger artistic piece. In support of this contention, the court discussed the famous line from “Gone with the Wind” – “Frankly my dear I don’t give a damn” – that was controversial at the time, but ultimately became not so controversial and was always just a small part of the larger classic movie. This is essentially how the court viewed the Pink concert (although it did not suggest that “Gone With the Wind” and Pink are of equal quality or relevance). While there were some inappropriate words in some of Pink’s songs, overall the lyrics were “not only age-appropriate for teens and pre-teens in 2014 America, but from an artistic standpoint [were] particularly noteworthy in addressing important social themes and messages which are objectively relevant and very relatable to young Americans.” As for the dancing, the court observed that “[e]very performing was wearing clothes,” and that “while some people might conceivably consider some of the dancing to at times be sexually suggestive, there [was] nothing which could even remotely or reasonably [have been] considered ‘obscene’” as the US Supreme Court has defined that term.
Based on its review of the content of the Pink concert, the court held that the mother was well-within her discretion to take her daughter to the concert. Perhaps more importantly, it also observed that the benefits of the experience far outweighed any alleged negative impact:
Perhaps most important, however, is the fact that [the daughter] enjoyed a parent/child night out together, sharing an experience which was clearly very important to the child in her young life. In this day and age, it is easy for parents to put off important bonding experiences with their children until a tomorrow which simply never comes. Here, defendant invested her time, energy and money into providing the child with a memorable mother/daughter evening together. The positive value of this experience is not diluted in any fashion merely because there may have been some incidental curse words or allegedly suggestive themes during some of the songs at the concert.
. . .
In this case, the court finds that while the parties may have had a legitimate difference in subjective personal opinion about the Pink rock concert, defendant has in no way, shape or form exceeded the boundaries of reasonable parental judgment in electing to take the child to the show during her own scheduled parenting time. Her decision did not subject the child to any unreasonable risk of harm, or compromise [the daughter’s] health, safety or welfare. To the contrary, when all the smoke from the custody litigation clears, it will be self-evident that all which happened here is that a young girl went to her first rock concert with her mother and had a really great time.
[Because I am not a fan of Pink, part of me wants to sarcastically note that the court was wrong and you are a bad parent if you subject your child to one of her concerts. But, I cannot do this because I took my daughter to a “Big Time Rush” (hereinafter referred to by the kids as “BTR”) show a few summers ago. For those of you not familiar with BTR, they are the 98 Degrees of current boy bands – BTR is the poor man’s One Direction in the same way 98 Degrees was the poor man’s Backstreet Boys or N ’Sync. And, as far as I am concerned, all of these boy bands are the poor man’s New Edition and NKOTB.]
Pete's Take 