Background
Dominic Brister was convicted of child neglect and operating while intoxicated (OWI) with a minor in the car after police stopped him on I-43 while his then-two-year-old daughter Diana was unsecured in the backseat. Officers found a loaded gun under the rear passenger seat. Brister received eighteen months of confinement and eighteen months of extended supervision for these crimes. He also faced an unrelated 2020 conviction for possessing a firearm as a felon. The circuit court ran the sentences consecutively, resulting in an eleven-year total sentence.
At sentencing, the circuit court imposed a no-contact order prohibiting Brister from contacting his then-four-year-old daughter Diana for the entire eleven-year sentence—prohibiting all contact and communication, including phone calls, texts, emails, and letters. In his postconviction motion, Brister requested modification to allow supervised contact, arguing that complete prohibition would effectively terminate his parental rights. The circuit court denied the motion.
The Court’s Holding
The Wisconsin Court of Appeals reversed and remanded the case. The court held that a sentencing condition prohibiting all communication between a parent and child constitutes a content-neutral restriction on the parent’s First Amendment rights. U.S. Supreme Court precedent recognizes parental rights to communicate with and direct the upbringing of one’s children as inextricably tied to First Amendment protections. Accordingly, such conditions must satisfy intermediate scrutiny: they must be “narrowly tailored to serve a significant governmental interest.”
Applying this standard, the court found the eleven-year no-contact order unconstitutionally overbroad. The crimes for which Diana was a victim (child neglect and OWI with a minor) resulted in only three years of Brister’s total sentence, yet the no-contact order lasted nearly eleven years—almost quadruple the sentence for the crimes justifying it. The court also found the order’s scope unreasonably broad, noting that Brister was prohibited from all communication—including letters during confinement—without explanation of how complete prohibition protects Diana. The court emphasized that the parent-child relationship is a finite right existing only until majority; the order would eliminate virtually all of Brister’s constitutionally protected parental relationship without legal procedures required to formally terminate parental rights.
Key Takeaways
- Parent-child communication is a First Amendment-protected right; sentencing conditions restricting such communication require intermediate scrutiny rather than minimal rational-basis review.
- No-contact orders must be narrowly tailored to the harm involved and proportionate to the sentence for the crimes justifying them.
- Courts may not impose lengthy or absolute no-contact conditions between parents and children that substantially exceed the sentence for the underlying crime or that do not meaningfully connect to victim protection.
- Complete prohibition of all communication methods during incarceration lacks rational connection to victim protection when the defendant caused no physical harm to the child.
Why It Matters
This decision substantially constrains judicial discretion in imposing no-contact sentencing conditions involving parent-child relationships. While Wisconsin law permits courts to impose no-contact orders to protect crime victims, this ruling subjects such conditions to constitutional scrutiny when they restrict First Amendment-protected communication. The court’s analysis reflects evolving U.S. Supreme Court recognition that parental communication rights receive constitutional protection.
Trial courts will now need to specifically justify the duration and scope of parent-child no-contact orders, particularly when the order extends substantially beyond the sentence for crimes involving the child or spans unrelated criminal cases. While the decision does not eliminate no-contact orders between parents and children, it requires them to meet intermediate scrutiny. The court suggested that crimes where a parent directly harms the child might justify lengthier conditions, but even then, courts must demonstrate narrow tailoring. This ruling will likely prompt reconsideration of existing no-contact orders imposing similar disparities between crime sentences and order durations.