I bet you would never think that your tattoos could impact a custody decision. Recently, I had an opposing attorney compel my client to provide a detailed explanation as to the meanings of his tattoos. It was a strange request, but in light of his prior criminal history, it was deemed relevant.
In complying with the request, I invited my client into the office for a meeting that we dubbed “Tattoo Inventory.” My legal assistant, with her digital camera in hand, was summoned to the conference room where my client was asked to remove his shirt, so we could provide the requested explanation of his tattoos. Putting aside my shock, as I realized that there was not a piece of skin from above his wrist to below his neck that was not covered in tattoos, we began the process of documenting and explaining their meaning.
Who would have thought that tattoos could impact a custody case? Imagine if the tattoos documented drug and gang activity – could a judge base a parenting time decision on the nature of one parent’s tattoos? The First Amendment guarantee of freedom of speech immediately comes to mind, and the Arizona Supreme Court recently decided a case in which the speech element of tattoos was at issue (although in a different context than in the child custody scenario).
In Coleman v. City of Mesa, the Court analyzed a claim by the owners of a tattoo shop that they were illegally denied a city zoning permit to operate their shop. The lower court initially dismissed the claim, but the Arizona Supreme Court declared that tattooing is a protected form of “pure speech” under the First Amendment and that the lower court should have heard the case.
It remains unclear how the case will ultimately be resolved – the shop owners still must succeed in showing that the denial was an invalid exercise of the city’s authority – but this case may signal a shift in the way that Americans view tattoos.
The high court’s decision to treat tattooing as a protected form of speech should, at minimum, give more freedom to the owners and operators of tattoo parlors to practice their trade in areas of cities like Scottsdale, Chandler, and Cave Creek which might previously have been unavailable to them. Furthermore, the court’s acknowledgment of tattoos as speech could open the door for additional challenges in employment and other arenas – including custody and adoption cases.