Colorado’s second-highest court overturned a Jefferson County judge’s order last week in a long-running dispute about whether two ex-spouses must call their child by his first name or middle name outside the home.

In doing so, a three-judge Court of Appeals panel clarified that the standard for restricting a parent’s free speech rights is a “demanding” one, requiring detailed findings of a substantial harm to the child.

“To the extent the court’s order limits what a parent may call the child in public or what the parent may or may not say to third parties about the child’s name,” wrote Judge Sueanna P. Johnson in the Dec. 24 opinion, “the court must narrowly tailor any such restriction by considering, for example, whether (1) the parent’s speech will be uttered in front of the child; (2) the parent’s speech substantially harms the child, as opposed to whether there is harm or confusion to third parties; or (3) the restrictions are so vague so as to place the parent … subject to contempt without notice.”

The case of former spouses Jocelyn Javernick and Juan Javier Teruel De Torres raised the question of how a trial judge may modify his decision regarding the names parents may use for their children, and when such a directive infringes on a parent’s First Amendment rights.

At the time of the parties’ 2020 divorce, they had one young son. The father preferred to call the boy by his first name or by a nickname, while his mother used the middle name. After the mother unsuccessfully tried to change the child’s name altogether, then-District Court Judge Randall C. Arp was highly critical of the adults for “what you’re doing to this poor little boy,” while ultimately requiring the parties to use his middle name going forward.

A different Court of Appeals panel returned the case to Arp in 2021 to address a handful of specific issues. At a March 2022 hearing, Arp once again slammed the parents for morphing the name dispute into a “reflection to this little boy every day of the ongoing conflict between his parents.” He then withdrew the requirement that either parent call the boy by a specific name. Until the child was old enough to indicate his own preference, he would be identified “in the public eye and in the official records” by his full name, Arp ruled.

Months later, the father filed a new motion under the civil rule allowing parties to seek a judge’s declaration of their rights. He alleged the mother was disregarding Arp’s order and third parties were confused about what they were permitted to call the boy.

In response, Arp indicated he would “clarify” his original order, and for the first time required the mother to call the boy by his first name or nickname “in all public settings.”

“If providers refuse to follow the instructions of the parents, the parents can and should seek other providers who will follow their instructions,” Arp added.

The mother asked him to reconsider, arguing Arp’s clarification was procedurally improper and violated her constitutional rights. Arp issued a revised order in December 2023, now directing the mother not to tell medical or educational providers that the child goes by “any other name” than his first name.

During oral arguments in January, the appellate panel expressed concern regarding Arp’s conduct. Moreover, the judges were confused about what his order actually meant.

“So, when a teacher says, ‘What do I call your son?’ can (the mother) say, ‘The middle name?'” asked Johnson. “Or does she have to say something like, ‘Well, under court order, he has to go by his first name. But you’re going to hear me call him by his middle name?'”

The mother “wants the ability to say, ‘This is the official name. This is how he’s going to be registered, his official name.’ But when she’s on the sidelines (of a sporting event) cheering him on, she gets to use the name she wants to use,” said attorney Christopher Griffiths.

The problem, he continued, is that if a hypothetical soccer coach were to call the child by his middle name and the father learned of it, the parents would have to, pursuant to Arp’s order, “seek other providers.”

“Is the order binding on the soccer coach?” asked Judge Lino S. Lipinsky de Orlov.

“No, but it’s binding on mother, and she’s compelled to terminate the soccer coach,” said Griffiths.

Meanwhile, Judge Craig R. Welling suggested that while Arp’s original naming order “wasn’t terribly helpful” because it did not resolve the dispute, the father’s motion for a declaration of rights was “the wrong vehicle” to revisit the issue.

Ultimately, the panel agreed Arp altered the substance of his original order without considering the factors required in state law for modifying a parenting order. The only grounds for alteration, wrote Johnson, were physical endangerment or emotional harm to the child.

At the same time, Arp’s “near-blanket prohibition on calling the child anything but his first name in public” implicated the mother’s First Amendment rights, Johnson continued.

“The court’s restriction of either parent’s speech about the child’s name, in public or private, is a content-based restriction,” she wrote, “that cannot simply be subject to the best interests of the child standard without meeting the other heightened constitutional standards.”

The panel adopted a framework for evaluating the constitutionality of a naming order using “non-disparagement clauses” from other states’ courts as a guide. Neither the mother nor father appeared to advocate anywhere for that standard, but Johnson wrote that the free speech implications were “analogous.”

The panel returned the case to the trial court for re-evaluation.

The case is In re Marriage of Teruel De Torres.