From Powell v. Knoepfler-Powell, decided last week by Judge David Bernhard of the Virginia Circuit Court (Fairfax County):
The Court … holds [that a divorce settlement agreement] term that the parties are to exercise "great care prior to introducing" their "boyfriends or girlfriends with whom they may have a romantic relationship" to their child, is void as against public policy and unenforceable. The clause is unduly vague and calls upon the Court to unreasonably limit the freedom of association and speech of the parties interacting with their child ….
The Court is part of government and as such, is restricted from unduly interfering with fundamental rights. The Virginia Code calls upon judges presiding in disputed custody and visitation cases to consider the best interests of subject children in application of a number of listed factors "for purposes of determining custody or visitation arrangements," which may empower the Court to a limited extent to regulate associations and speech when harmful to the child…. [But t]he Court must tread lightly, if at all, in imposing prior restraint on the associations and speech of a parent who has given no cause to the Court to conclude that she will act in any way harmful to the parties' child. In the context of this Court imposing an order restricting parental freedom of association and speech, it would thus be an abuse of discretion by allusion to the authorities herein cited at a minimum not to have a reasonable and equitable basis for so doing….
This provision, if again incorporated into this Court's order resolving the instant dispute, is equivalent to an injunction punishable upon transgression by the judicial contempt power. Previous agreement by the parties to a contractual term alone is not dispositive as to whether such provision is nevertheless void as against public policy.
