May, J.
Kory Easterday (“Father”) appeals the trial court’s decision to modify the legal custody of Ka.E. (“Child”), who is Father’s child with Amber (Easterday) Everhart (“Mother”). Father presents several issues for our review, two of which we find dispositive:
1. Whether the trial court erred when it granted Mother sole legal custody; and
2. Whether the trial court’s order prohibiting Father from discussing religion with Child violates Father’s right to free speech under the First Amendment to the United States Constitution.
We reverse in part.
….
Here, the trial court’s modification of legal custody in favor of Mother was based entirely on religion – Child expressed an interest in participating in religious activities at a church she attended with Mother. The trial court did not make a finding regarding, nor can we locate in the record, another substantial change in circumstances to warrant a change in legal custody. Therefore, we conclude the trial court erred4 when it awarded Mother sole legal custody of Child based solely on Child’s desire to “pursue and express her faith[.]” (App. Vol. II at 19.) See Johnson, 615 N.E.2d at 146 (holding the trial court erred when it granted Mother sole custody based solely on Father’s increased involvement in religion without first finding whether that involvement affected children).
Father also argues the trial court’s order prohibiting him from discussing religion with Child violates his First Amendment right to free speech. [Footnote omitted.]…
The protections the First Amendment affords against prior restraints are not triggered unless there is a state action. Id. A custody order that restrains speech is state action that triggers protection under the First Amendment. In re Paternity of G.R.G., 829 N.E.2d 114, 124 (Ind. Ct. App. 2005)…
….
Like in G.R.G., the speech here is private – that is, it is between Father and Child. However, the case before us is distinct from G.R.G. because the trial court did not find, nor does the evidence suggest, that Father was discussing religion with Child in a way that had a negative impact on Child. Mother testified Child “cries[,] . . . is withdrawn[,] . . . presents with a rash and/or hives[,]. . . [and] [h]er face is puffy” after visiting with Father. (Tr. Vol. II at 11.) However, Mother did not specifically attribute Child’s reactions to discussions of religion between Father and Child.
Mother asked the court to “eliminate [Father’s] ability to question [Child’s] religion or try to talk her into believing that there is no God” because those discussions are “harmful to [Child].” (Id. at 15.) However, there is no evidence in the record that Father was having such discussions with Child. Mother did not testify about a specific instance during which Father spoke to Child about religion in general, much less a time when Father disparaged Child’s religious views or attempted to persuade Child there was not a God, and Father testified he did not tell Child there was no God and he wanted Child to make her own choices regarding religion.
Even if Child reported during the in-camera interview that Father was disparaging her religious views and telling her there was no God, the trial court’s total prohibition of Father’s right to discuss religion with Child is not narrowly tailored to further the State’s compelling interest in protecting Child’s welfare. There are likely many topics related to religion that Father could discuss with Child without causing harm to Child, including support for her decision to express and pursue her faith. With the trial court’s order as it is, Father can neither encourage Child’s faith nor encourage her to learn about how other people may believe and worship so that she grows up to be an educated citizen of our pluralistic country. Therefore, we hold the trial court’s order totally prohibiting Father from discussing religion with Child violated his right to free speech under the First Amendment. [Footnote omitted.] See Matter of A.C., 198 N.E.3d 1, 18-19 (Ind. Ct. App. 2022) (trial court’s prior restraint on the parents’ speech regarding A.C.’s gender identity outside of family therapy did not violate the parents’ free speech rights because, while conversations regarding A.C.’s gender were private among the mother, father, and A.C., it was undisputed that the conversations in that case harmed the child.), reh’g pending.
Conclusion
Father has demonstrated prima facie error. We hold the trial court erred when it based the modification of Child’s legal custody solely on religion. Further, the portion of the trial court’s order totally prohibiting Father from discussing religion with Child violates his First Amendment right to free speech. Accordingly, we reverse those parts of the trial court’s order. [Footnote omitted.]
Reversed in part.
Crone, J., and Weissmann, J., concur.