In re the Marriage of: Jennifer Ann Peterson n/k/a Jennifer Ann Hirschey, petitioner, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1588

In re the Marriage of:
Jennifer Ann Peterson n/k/a Jennifer Ann Hirschey, petitioner,
Respondent,

vs.

Kevin John Peterson,
Appellant.

Filed September 5, 2017
Affirmed in part, reversed in part, and remanded
Kirk, Judge

Aitkin County District Court
File No. 01-FA-14-803

Shari L. Frey, Frey Law Office Ltd., Brainerd, Minnesota (for respondent)

Andrew T. Meyer, Clausen & Hassan, LLC, St. Paul, Minnesota (for appellant)

Considered and decided by Kirk, Presiding Judge; Worke, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant-father challenges the district court’s award of sole physical and sol e legal
custody, and more than 50% of the parenting time, to respondent-mother, arguing that the
court abused its discretion when it relied on unsupported findings regarding his mental health,
and that mother failed to rebut the presumption in favor of joint legal custody . Father also
challenges the constitutionality of a social media provision in the parties’ marital dissolution

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decree. Because the district court did not abuse its discretion in its custody or parenting-time
awards, we affirm in part. But because the social media provision is an unconstitutional prior
restraint on speech, we reverse in part and remand.
FACTS
The following evidence was presented to the district court during the parties’ four-day
dissolution trial:
Appellant-father Kevin Peterson and respondent -mother Jennifer Hirschey were
married in 2004 and have three minor children. The parties separated on December 29, 2014.
Father has a B.A. in chemistry and is pursuing a teaching license and working as a bus driver,
substitute teacher, and township supervisor. He also does volunteer grant writing. Father was
a stay-at-home parent during most of the parties’ marriage . Mother is a pharmacist and is
employed as the Director of Outpatient Services at a hospital where she has worked during
most of the parties’ marriage.
Father was diagnosed with reading and writing disabilities when he was in college in
1997. Father testified that he does not comprehend what he reads and needs books and tests
read out loud to him. Results from the entrance testing that father took for his teacher-
licensing pro gram indicate that he scored in the average or high -average range in various
reading and writing skills. Father testified that he was given accommodations during those
exams. The children’s paternal grandfather testified that father did not seem to strug gle
academically in high school and maintained a B-average.
The parties’ eldest child began receiving counseling through his school before the
parties’ separation because of issues with the child’s teacher. Father arranged for counseling

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despite mother’s opinion that it was premature. The counselor continues to see the child, who
appears to be adjusting well, but opines that the child does not meet criteria that would require
counseling.
Father has a history of making unfounded accusations of child abuse against mother.
After mother initiated divorce proceedings, father made clandestine audio recordings of her
interacting with the children. Father played three of the recordings at trial and alleged that
they document mother abusing the children.
In 2013, the parties sought counseling from licensed marriage and family therapist Jodi
Olson. During an individual session , father accused mother of physically abusing the
children, triggering a mandated report to social services. Olson informed father that she was
required to make the report , and he indicated that he was okay with it. Father’s abuse
allegations were not consistent with Olson’s observations of the parties’ joint sessions. When
the child-abuse claim was investigated by social services, father recanted and claimed that
Olson misunderstood his statements.
Olson diagnosed father with narcissistic personality disorder, but he denies any
narcissistic traits and claims that his disabilities were not accommodated during his intake
testing, which affected the result s. Olson did not believe that father was truthful about the
extent of his learning disabilities and did not see evidence of impairment in his test responses.
Olson testified that narcissists may have a hard time putting their children’s need s first, may
attend community events to appear like a good parent rather than f or the children’s benefit,
and that they like to be admired, which is not something children always do.

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Mother testified that she tries not to influence the children or speak ne gatively about
father, but that father tries to influence the children by undermining and disparaging her.
Mother testified that she supports the children’s relationship with father, but she does not
believe that he supports her relationship with them. Mother also testified that she is willing
to facilitate father’s parenting time, but that she would like it to be limited so the children
have more stability and less exposure to father’s mental health issues. Father testified that the
eldest child has heard mother speak negatively about the children’s treatment in his home and
continued to claim that mother physically abuses the children.
Mother further testified that she and father cannot communicate well to effectively co-
parent, and portrayed him as uncooperative. Since their separation, the parties have disagreed
about one of the children attend ing church camp and father has requested separate parent -
teacher conferences. The parties communicate in wri ting using Our Family Wizard , and
mother testified that father’s posts seem to be antagonistic and that their disagreements do not
get resolved.
Beginning in February 2015, and continuing until the dissolution decree, the parties
followed a temporary parenting-time schedule of alternating weeks. During one of mother’s
weeks, one of the children had pink-eye. Mother took the child to an after-hours provider and
got a prescription to treat the condition. Upon learning about the appointment and treatment,
father was angry that he did not get to select th e treating doctor and that mother did not get
his approval before treating the child. Father later demanded that the child be taken back to
the doctor so he could attend the appointment.

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At the second appointment, father got into a dispute with the doctor about whether the
child’s medication was appropriate and alleged that the child was allergic to the medication.
The doctor disagreed with father’s assessment. A week or two later, father took the child to
a regularly scheduled eye exam and the resultant records state that the child has an allergy to
the pink-eye medication. Mother is concerned that because of father’s insistence, the child’s
medical records now reflect an unsubstantiated allergy that may lead professionals to
unnecessarily avoid using the medication to treat the child in the future . At trial, f ather
appeared to back off of his claim that the child is allergic to the medication, but insisted that
it was not working and should have been discontinued.
For a period of time before the temporary parenting-time order was filed, the children
were not spending time alone with father. Upon resuming his parenting time, father took the
children to their primary-care doctor to be evaluated for signs of abuse. Father claimed that
mother was physically abusing the children and not feeding them while they were in her care.
His abuse allegations were unsubstantiated.
The parties also had a conflict in October 2015 when father wanted to take the children,
then ages 3, 6, and 8, to a police officer’s funeral during mother’s parenting time. Mother did
not think it was appropriate for the children to attend due to their young ages and because
they did not know the officer or his family. Father responded to mother’s concerns by stating
that he had asked to take the children, not for her opinion.
Prior to trial, the district court appointed Melanie Dotty to complete a custody
evaluation. During Dotty’s investigation, father c laimed that mother abused drugs , worked
very long hours , and was a poor parent. Father’s allegations were unsubstantiated. Father

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provided his audio recordings to Dotty , and she concluded that they did not evidence abuse
by mother . Dotty expressed her concern that father was placing undue influence on the
children regarding mother and the divorce. Dotty requested psychological evaluations of the
parties and incorporated the results into her custody evaluation.
For their psychological evaluations, the parties sat for clinical interviews with licensed
independent clinical social worker Philip Tange, then completed psychological testing.
Mother’s interview occurred on March 31, 2015, and her testing was completed on April 8.
Tange diagnosed mother wit h an adjustment disorder with mixed anxiety and depressed
mood. Tange opined that mother did not have any mental health issues that would affect her
ability to parent. During her interview, mother expressed a desire to co -parent effectively
with father.
Father’s interview occurred on April 9, 2015, and his testing was completed on May
20. Father was diagnosed with an anxiety disorder and a personality disorder with obsessive-
compulsive and narcissistic traits. Tange found that father had difficulty managing his anger
and resolving conflict . Tange indicated that father paints himself as the victim and feigns
mistreatment. Tange concluded that father can parent adequately, but that his stubborn and
inflexible personality traits may cause problems wit h co-parenting. Tange was especially
concerned that father’s inflexibility would become more problematic as the children get older
and begin to assert independence. During his interview, father said that he did not believe
joint custody would work because he cannot trust mother. Tange concluded that joint custody
was unlikely to work because of the level of discord between the parties.

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Father indicated to Tange that he has difficulty reading and that he disputes his
previous diagnosis of narcissistic personality disorder. Tange noted that father did not appear
to need assistance with his psychological testing and that his test results do not indicate that
he struggled with comprehension during the test. Tange testified that father was asked the
same question in a number of ways throughout the test and that someone who struggled to
comprehend the questions would likely have answered them inconsistently , but f ather’s
responses were consistent with each other.
Based on her investigation and on the parties’ psychological evaluations, Dotty
testified that she doubted the parties could co -parent effectively because of father’s chronic
pattern of lies, manipulations, and false allegations. Ultimately, Dotty concluded that mother
was more accurately detailing events and that father was being dishonest or fabricating events.
Dotty noted that she had concerns regarding father’s mental health, his anger issues, his
difficulty resolving conflict, and his chronic ongoing resentments. Father also continues to
make false allegations against mother to professionals and in the community. Dotty testified
that the parties have not had a sustained period of time when they were able to work together.
After analyzing the best -interests factors in her custody evaluation repor t and in her
testimony at trial , Dotty recommended that mother be awarded sole legal custody because
father is unable to cooperate with mother, tends to need complete control, and wants to
micromanage his children’s lives. 1 Dotty noted that if the parties were awarded joint legal

1 Dotty completed the custody evaluation on June 25, 2015, before the 2015 changes to Minn.
Stat. § 518.17, subd. 1(a) , took effect. She testifi ed that the change in the law did not affect
her conclusions and recommendations. The district court also recognized the change in the
law and stated that its conclusions would be the same under either analysis.

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custody, she anticipates years of struggle, conflict, arguing, chaos, confusion, and anxiety for
the children. If awarded joint legal custody, Dotty did not believe that the parties would be
able to communicate effectively without involving attorneys or other professionals. She also
opined that if father was awarded sole legal custody, or more parenting time than mother, that
he would use it to cut mother out of the children’s lives, to withhold information from mother,
and to control mother and the children.
The district court awarded mother sole legal and sole physical custody of the children,
with parenting time to father so that the children are in father’s care approximately 30% of
the time during the school year and 50% of the time during the summer months.
Father appeals.
D E C I S I O N
I. The district court did not abuse its discretion when it awarded sole legal and sole
physical custody to mother.

The district court has broad discretion in making custody decisions. Matson v. Matson,
638 N.W.2d 462, 465 (Minn. App. 2002). In reviewing custody awards, this court determines
“whether the [district] court abused its discretion by making findings unsupported by the
evidence or by improperly applying the law.” Pikula v. Pikula, 374 N.W.2d 705, 710 (Minn.
1985). This court will defer to the district court’s findings of fact , unless they are clearly
erroneous, and will defer to the district court’s credibility determinations. Sefkow v. Sefkow,
427 N.W.2d 203, 210 (Minn. 19 88). In order to successfully challenge a district court’s
findings of fact, “the party challenging the findings must show that despite viewing that
evidence in the light most favorable to the [district] court’s findings . . . , the record still
requires the definite and firm conviction that a mistake was made.” Vangsness v. Vangsness,

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607 N.W.2d 468, 474 (Minn. App. 2000). “That the record might support findings other than
those made by the [district] court does not show that the court’s findings are defective.” Id.
In determining custody, the district court must consider and evaluate all relevant
factors, including the best-interests factors set forth in Minn. Stat. § 518.17, subd. 1(a) (2016).
Here, the district court conducted an analysis of the bes t-interests factors and concluded that
the following factors favored an award of sole legal and sole physical custody to mother:
(1) the emotional needs and dev elopment of the minor children ; (2) the effect of father’s
mental health issues on the children’s safety and developmental needs; (3) “the disposition of
each [party] to support the child[ren’s] relationship with the other parent and to encourage
and permit frequent and continuing contact between the child[ren] and the other parent”; and
(4) the parties’ inability to cooperate, minimize exposure of the children to parental conflict,
and resolve disputes regarding the children . Id., subd. 1(a) (1), (5), (11), (12) . The district
court determined that the remaining best-interests factors were neutral.
In support of its determination that the factors listed above favored an award of sole
legal and physical custody to mother, the court found that father has significant and ongoing
mental health issues that impact his perception of mother and his ability to co -parent. The
court found that father’s mental health issues may impact his ability to be flexible with the
children as they get older, and that he has placed the children in the middle of parental
disputes. The court also found that an award of sole custody was supported by the parties’
inability to cooperate, minimize exposure of the children to parental conflict, and resolve
disputes. The court concluded that the parties lack the ability to co -parent and that the
evidence overcame the rebuttable presumption in favor of joint legal custody. The court also

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concluded that it is in the children’s best interests for mother to have sole legal and sole
physical custody.
A. Sole legal custody.

When a party requests joint legal custody, as father d id here, the court must use a
rebuttable presumption that joint legal custody is in the best interests of the children. Minn.
Stat. § 518.17, subd. 1(b)(9) ( 2016).2 This court has held that joint legal custody is
inappropriate “[w]here the evidence indicates that the parties lack the ability to cooperate and
communicate.” Wopata v. Wopata, 498 N.W.2d 478, 482 (Minn. App. 1993) ; see Chapman
v. Chapman, 352 N.W.2d 437, 441 (Minn. App. 1984) (stating that “joint legal custody should
not be used as a ‘legal baseball bat’ to coerce cooperation”).
Father argues that the district court erred when it concluded that the rebuttable
presumption in favor of joint legal custody was overcome and that it abused its discretion
when it awarded sol e legal custody to mother. Father argues that the record supports the
conclusion that the parents co -parented very well for the seven months leading up to the
dissolution trial, and that the psychological evaluations the court relied on were stale, deeply
flawed, and invalid because father did not receive appropriate testing
accommodations.3 Father lists various communications between the parties as evidence of

2 This presumption is reversed in cases involving domestic abuse between the parties as
defined in Minn. Stat. § 518B.01 (2016). Despite allegations of spousal abuse by both parties,
the district court determined that the credible allegations did not constitute domestic abuse as
defined in Minn. Stat. § 518B.01. The parties do not dispute this determination.
3 Father’s assertion that his psychological evaluation was stale is not supported by the record.
The report indicates that its results and recommendations are valid for one year. The
dissolution trial occurred, and the initial dissolution decree was issued, within one year of his
psychological testing.

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cooperation. Father asserts that one of the only disagreements the parties have had regarding
issues of legal custody concerned the best way to treat a pink-eye infection. Father also asserts
that mother is largely responsible for any conflict and inability of the parties to cooperate and
that she did not make a good faith effort to co-parent effectively.
Father compares the award of sole legal custody here to the award in Barrett v. Barrett,
394 N.W.2d 274 (Minn. App. 1986). But the award of sole legal custody in Barrett was
reversed on significantly different facts. Unlike the district court here, the district court in
Barrett failed to make findings on the factors relevant to joint legal custody and based its
award of sole legal custody on “numerous disagreements” between the parties that did not
“relate to those major decisions in the life of their children such as religion, education, and
health.” 394 N.W.2d at 278. The Barrett court also did not conclude, as the district court did
here, that either parent had significant mental health issues that negatively impacted their
ability to parent. See id. Furthermore, in Barrett, unlike in this case, neither parent claimed
that the parents could not cooperate to raise their children. See id. There was also no
demonstration in Barrett that an award of joint legal custody would result in harm to the
children. Id.
Mother argues that the record supports the district court’s award of sole legal custody
and that the record reflects the parties’ inability to cooperate and communicate. Mother
concludes that the district court’s award of sole legal custody was not an abuse of discretion
and asks this court to affirm.
A review of the trial record indicates that the district court’s factual findings are not
clearly erroneous and that the court properly applied the law:

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1. The children’s emotional needs and development would best be served
by sole custody to mother. Minn. Stat. § 518.17, subd. 1(a)(1).

The district court found that father’s “need to control will impact his ability to parent
and the c hildren’s emotional development .” The court relied heavily on Dotty’s custody
evaluation and Tange’s opinion. Evidence of father’s need to control is also found in Dotty’s
and Olson’s testimony. Based on this record, it was not clearly erroneous for the district court
to conclude that father’s need to control wi ll impact his ability to parent and the children’s
emotional development in the future. The district court did not err when it determined that
this factor favored an award of sole custody to mother.
2. Father’s significant mental health issues may affect the children’s
safety or developmental needs. Minn. Stat. § 518.17, subd. 1(a)(5).

The district court found that Tange’s opinion that joint custody would not work for
these parties because of father’s obsessive-compulsive personality and narcissistic traits , as
well as his struggle with anger, stubbornness, and inflexibility, was cred ible and weigh ed
significantly in favor of mother. Father’s psychological evaluation, the custody evaluation,
and Olson’s testimony regarding father’s diagnosis of narci ssistic personality disorder also
support the court’s finding that father has si gnificant mental health issues and a history of
problematic behaviors consistent with his diagnoses. Father insists that the diagnose s given
to him by Olson and Tange are inaccurate because his disabilities were not properly
accommodated during the testing processes. But father’s documented behavior in the
presence of these professionals comports with the diagnoses they reached and with the court’s
findings.

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It was not clearly errone ous for the district court to conclude that father’s significant
mental health issues and associated behaviors may affect the children’s safety and
development. Even though father was not given testing accommodations during his
psychological examination, Tange explained in his testimony the validity of father’s test
results, and it was not clearly erroneous for the district court to rely in part on Tange’s results
and testimony. The record supports the district court’s conclusion that father’s mental health
issues and associated behaviors will continue to affect the children’s safety and development.
The district court did not err when it determined that this factor favored an award of sole
custody to mother.
3. Mother is likely to support and encourage the children’s relationship
with father, but father is not likely to do the same for mother. Minn.
Stat. § 518.17, subd. 1(a)(11).

The district court found that father is uncooperative and significantly misperceives
mother, which makes it unlikely that he wi ll be able to support her relationship with the
children. The district court also reviewed the audio tapes father created a nd agreed with the
professional witnesses that they did not document abuse. These findings are supp orted by
evidence in the record and are not clearly erroneous. The district court did not err when it
determined that this factor favored an award of sole custody to mother.
4. The parties are not able to cooperate, minimize exposure of the
children to parental conflict, and resolve disputes regarding major life
decisions concerning the children. Minn. Stat. § 518.17, subd.
1(a)(12).

The district court found that the parties have significant issues cooperating and
resolving disputes, and that the children have been exposed to parental con flict. The record
contains ample evidence of contentious exchanges between the parties that either were left

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unresolved or were resolved by the parent in possession of the children acting unilaterally.
Father’s choice on more than one occasion to seek un necessary medical opinions placed the
children squarely in the middle of such parental disputes. These health-related conflicts, along
with conflicts regarding church camp, funeral attendance, and parent -teacher conferences
support the district court’s award of sole legal custody.
The district court did not clearly err or abuse its discretion when it concluded that the
parties lack the ability to co -parent. Further, the court did not abuse its discretion in
concluding that it was in the best interests of the children to award mother sole legal custody.
There is sufficient evidence in the record to support the district court’s determination that the
presumption in favor of joint legal custody was overcome.
B. Sole physical custody.

The same analysis of whether the district court’s factual findings and legal conclusions
are clearly erroneous appli es to the court’s award of sole physical custody as it did in the
context of legal custody, except that there is no presumption in favor of joint physical custody
to overcome. See Minn. Stat. § 518.17, subd. 1 (2016). As analyzed above, the district court’s
findings and conclusions are not clearly erroneous, and therefore the court did not abuse its
discretion when it awarded mother sole physical custody.
II. The district court did not abuse its discretion in its parenting-time award.

The district court has broad discretion in awarding parenting time. Olson v. Olson ,
534 N.W.2d 547, 550 (Minn. 1995); Crosby v. Crosby , 587 N.W.2d 292, 295 (Minn. App.
1998), review denied (Minn. Feb. 18, 1999). We will not overturn a parenting -time award
absent an abuse of discretion. Olson, 534 N.W.2d at 550; Crosby, 587 N.W.2d at 295.

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Findings of fact will be upheld if they are not clearly erroneous. Crosby, 587 N.W.2d at 295
(citing Minn. R. Civ. P. 52.01).
In dissolution proceedings, the distric t court must “grant such parenting time . . . as
will enable the child[ren] and the parent to maintain a child to parent relationship that will be
in the best interests of the child[ren].” Minn. Stat. § 518.175, subd. 1(a) ( 2016). “[T]here is
a rebuttable presumption that a parent is entitled to receive a minimum of 25 percent of the
parenting time for the child[ren].” Id., subd. 1(g) (2016). If “parenting time with a parent is
likely to . . . impair the child[ren’s] emotional development, the court shall restrict parenting
time . . . as the circumstances warrant.” Id., subd. 1(b) (2016). The mental health issues of a
parent can only be considered if they “affect[] the [children’s] safety or developmental needs.”
Minn. Stat. § 518.17, subd. 1(a)(5).
Father argues that the district court abused its discretion by decreasing his parenting
time. Father notes that he was undisputedly the children’s primary care taker until the parties
separated, and argues that the parties successfully split parenting time 50/50 for a year prior
to the dissolution decree. Father also argues that the new parenting-time award was based on
unsupported concerns about his mental health. Father requests that this court reverse and
remand with instructions for the district court to award him at least 50% of the parenting time
year-round. Mother contends that the same considerations and best -interests analysis that
supported the district court’s award of sole legal and sole physical custody also sup port the
court’s parenting-time award.
The district court incorporated its best -interests analysis regarding the award of sole
legal and physical custody to mother into its parenting-time determination and concluded that

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it was in the best interests of the childre n to have regular parenting time with father as set
forth in the dissolution decree. We previously concluded that the district court’s factual
findings and legal conclusions regarding custody were not clearly erroneous, and we apply
the same analysis to t he court’s parenting -time determination . Father was awarded more
parenting time than mandated by statute, and the district court did not err in considering
father’s mental health or in finding that his mental health issues affect the emotional
development of the children. The district court’s findings and conclusions were not clearly
erroneous, and the court did not abuse its discretion in its parenting-time award.
III. The social media provision in the parties’ marital di ssolution decree is an
unconstitutional prior restraint on speech.

“Any prior restraint of speech is reviewed bearing a heavy presumption against its
constitutional validity.” Minneapolis Star & Tribune Co. v. Schmidt , 360 N.W.2d 433, 435
(Minn. App. 1985) (quotation omitted). “Any exception to this fundamental principle must
be necessitated by a compelling state interest, and narrowly tailored to serve that interest.”
Id. (quotation omitted). The best interests of a minor child is a compelling state i nterest that
may justify infringement of a fundamental right. See, e.g., LaChapelle v. Mitten, 607 N.W.2d
151, 163-64 (Minn. App. 2000) (holding that the best interests of a child was a compelling
state interest justifying infringement on a mother’s fundamental right to travel), review denied
(Minn. May 16, 2000); Sina v. Sina, 402 N.W.2d 573, 576 (Minn. App. 1987) (holding that
the best interests of the children took precedence over a father’s First Amendment right to
freedom of religion).
In Geske v. Marcolina, 642 N.W.2d 62 (Minn. App. 2002), this court concluded that
where a father published his children’s names and images in the media to their detriment, the

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best interests of those children justified the district court restricting the father’s future
publication of such information. 642 N.W.2d at 69-70. In reaching that conclusion, this court
emphasized that the district court made clear findings of specific harm to the children caused
by the father’s past speech. Id. The district court’s clear find ings in Geske were in contrast
to other cases where this court has concluded that the best interests of a child did not justify a
prior restraint on speech. See, e.g., Minneapolis Star & Tribune Co. v. Lee, 353 N.W.2d 213,
215 (Minn. App. 1984). In addition to making clear findings of harm to the child, in order to
be constitutional, any prior restraint on speech must be narrowly tailored and must “only
prohibit[] as much speech as necessary to serve the compelling state interest.” Geske, 642
N.W.2d at 69.
Here, t he district court included the following provision in the parties’ marital
dissolution decree: “That the parties shall be prohibited from posting photographs or
information about the minor children on any social media, except if the children participate
in extracurricular activities for which social media is used for scheduling.” The district court
did not make related findings. Father argues that this provision is unconstitutional and
requests that it be vacated. Mother acknowledges that she did not present evidence in support
of the provision, but argues that the record supports it nonetheless.
We need not determine whether the social media provision is narrowly tailored so as
to be constitutional because the district court did not find that either party engaged in social
media posting to the detriment of the children, and because there is no evidence in the record
that such harm occurred. Here, the social media provision is an unconstitutional prior restraint

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on speech. We reverse and remand to the district court to remove the social media provision
from the parties’ dissolution decree.
Affirmed in part, reversed in part, and remanded.