NOT FOR PUBLICATION WITHOUT APPROVAL

OF THE COMMITTEE ON OPINIONS

.
C. ZOE,1

SUPERIOR COURT OF NEW JERSEY

OCEAN COUNTY
CHANCERY DIVISION
FAMILY PART

Plaintiff,
v.

DOCKET NO. FM-15-623-07N

D. ZOE
Defendant

CIVIL ACTION
.

OPINION

Decided: January 23, 2014

C. Zoe, plaintiff, pro se
D. Zoe, defendant, pro se
L. R. Jones, J.S.C.
This case presents issues involving divorced parents, an eleven year old
girl, and rock music. The parties are in the midst of ongoing contested
litigation over physical custody of the child, during which the plaintiff-father
contends that the defendant-mother abused her parental discretion and made
an age-inappropriate decision by taking their daughter to a rock concert
performed by the singer, P!nk, on December 11, 2013 at the Prudential Center
1

Pseudonyms and initials are used in place of the actual names of the parties and child at issue.

in Newark, New Jersey.2 For the reasons set forth in this opinion, the court
holds the following:
A) Following divorce, each parent serving as a joint legal custodian generally
has a right to exercise reasonable parental discretion over a child's activities
while in his or her physical care, free from unreasonable
interference,
infringement, obstruction or attempted control by the other parent.
B) Each parent has a constitutional right to exercise reasonable parental
discretion in introducing and exposing the child to works and performances of
the creative arts.
C) While divorced parents may disagree on whether a child should or should
not be exposed to certain works or performances of the creative arts, the
court will generally not interfere with either parents freedom of personal
discretion on the issue, or hold same as evidence of improper or inferior
parenting skills in custody litigation, unless the evidence reflects that the
artistic work or performance is so objectively age-inappropriate that no
reasonable person could rationally disagree on same.
D) Rock music is a valid and highly recognized form of creative artistic
expression in the United States and world.
E) Defendant's decision to take the parties' daughter to the P!nk rock
concert, during her own parenting time, was a reasonable and appropriate
exercise of parental discretion.
FACTUAL BACKGROUND
Plaintiff and defendant are divorced parents and joint legal custodians of
an eleven year old daughter (A.Z), as well as two younger sons. They are

P!nk is the stage name of the professional rock singer and performer, Alecia Moore.

currently in the midst of post-judgment litigation regarding residential custody

of all three children.
On December 11, 2013, defendant took the parties daughter, A.Z., to the
P!nk rock concert at the Prudential Center in Newark, New Jersey. Plaintiff
objected to A.Z's attendance. He contends that the performance was ageinappropriate for A.Z., due to alleged lyrical profanities in some of P!nk's songs,
as well what plaintiff contends were sexually suggestive themes and dance
performances during the show. Plaintiff argues that, had he personally been
at the concert, he would have walked his daughter out of the arena rather
than permit her to stay.

In the context of the ongoing custody case and

determination of the child's best interests, plaintiff asks the court to consider
defendant's decision to take the child to the P!nk concert as negatively
reflective of the parties different parenting methods, implicitly suggesting that
defendant's parenting style is inferior to his own.
Defendant

vehemently

disagrees with plaintiffs position.

She

acknowledges that that she took the parties' daughter to the concert and did
so as an early holiday present for A.Z., who is a P!nk fan and was "dying" to go
to a live show. Defendant further represents that, before deciding to take A.Z.
to the event, she first watched internet clips of other P!nk concerts on
YouTube, and found that her stage performances involved not only age-

appropriate singing and dancing, but also significant gymnastics and aerial
aerobics, in which A.Z. has a very specific interest. Defendant further explains
that that while she was at first a little on guard about taking the child to the
concert, she ultimately exercised her parental judgment and allowed her
daughter to attend the show.
Defendant points out that while some of the songs on the concert set list
did contain some profanities and adult-based lyrics, there were other songs
which were sung in a clean, radio version. She further describes the stage
costumes as little short shorts, but nothing

inappropriate in nature.

Defendant notes that the rock concert itself had no legal restrictions regarding
minimum age, and that A.Z. was far from the only child in attendance at the
Prudential Center. To the contrary, there were

many other parents and

children enjoying the concert that night as well. In fact, defendant indicates
that at one point during the performance, P!nk invited a small child from the
crowd up on stage in front of the entire audience to sing Happy Birthday to
his mother. 3

This moment, from the December 11, 2013 concert in New Jersey, was publicly viewable on YouTube as
of the time of this court case and date of this decision at https://www.youtube.com/watch?v=ZpAwrtvXncU
(last visited January 23, 2014).
3

Defendant states that, from her standpoint, there was nothing at the P!nk
concert which required her to remove A.Z. from the arena, as plaintiff claims
he would have done had he been present at the show. She further testifies that
the child especially enjoyed P!nk's aerial gymnastics and aerobics during the
performance, and that overall, the concert was a positive experience for A.Z.,
who still wears a P!nk t-shirt which she purchased at the concert. Defendant
denies any inappropriate parental judgment or abuse of parental discretion on
her part in allowing the child to attend the concert.4
Pursuant to Rule

5:8-6, and as part of the parties' ongoing custody

litigation, the court conducted an in camera interview of A.Z., regarding various

child-related issues, outside of the presence of her parents. She presented as
a very polite, respectful, neatly dressed child, who came across at all times as
sincere, honest, and credible. A.Z. is currently in the sixth grade, and reported
having many friends in school. She stated that she enjoys music, and one of
her favorite performers is P!nk. She explained that she started listening to
P!nks music on internet programs such as Pandora, iTunes and YouTube. She

Defendant's only stated reservation was that since the concert fell on a school night, she would think
twice about again taking the child to a mid-week concert. Even so, however, defendant further testified that
the child was in fact back home from the concert before midnight.
4

added that her mother generally does not let her listen to bad songs, or
watch R rated movies either.
A.Z spoke very fondly about going to the P!nk concert,

which was the

first major rock show she has ever attended. She was very excited to go, and
had a fun time attending with her mother. She noted that there were many
other children her age present in the arena, and she especially enjoyed P!nk's
aerobics because A.Z. herself has performed gymnastics in the past.
A.Z. said she thought that during the concert there was one bad song
(i.e., an adult song), but that she did not listen to the words and put her
earphones on at that time. She added that, in her personal opinion, the music
in a song is generally more important than the lyrics. Overall, A.Z. enjoyed the
show very much and she would want to attend again. She also stated, however,
that when she grows up, she does not wish to be a singer or performer herself.
Instead, she wants to be a veterinarian.
The question is

whether defendant's taking the child to the rock

concert was an inappropriate exercise of parental discretion, and thus

relevant factor in the parties' ongoing custody litigation. The court holds that
that the answer to both parts of this question is no.

LEGAL ANALYSIS
Preliminary Statement
In the United States, a parent has a fundamental and constitutional right to
make decisions regarding a child in his or her custody and care. See Stanley v.
Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 1212, 31 L.Ed.551, 558-59 (1972). The
Due Process Clause of the Fourteenth Amendment to the United States
Constitution protects this right, which is one of the oldest fundamental and
judicially recognized liberty interests in our nation. See Troxel v. Granville, 530
U.S. 57, 65-66, 120 S. Ct. 2054, 2060, 147 L.Ed. 2d. 49, 56-57. (2000). Inherent
in this right is the ability of a parent to exercise reasonable parental discretion
on child-related choices without undue interference from the state.
A major problem arises, however, when two separated or divorced parents,
who each serve as a joint legal custodian over the same child, clash over basic
parenting styles, choices and issues which do not seriously threaten a childs
general health, safety and well-being. While each parent may possess a
separate constitutional right to make choices and decisions for a child, there
will be invariably be occasions when divorced parents disagree and reach an
impasse over certain day-to-day issues.
While the present matter involves a parental disagreement over a child's
attendance at a rock concert, the case exemplifies an ever-growing challenge

for the family courts which extends far beyond

disputes over a childs

exposure to rock music. Specifically, the system is often inundated with battles
between warring ex-spouses who come to court with grievances and
allegations about each other's parental skills and decisions. In a great many of
these circumstances, the dispute actually boils down to one parent, or
sometimes each parent, attempting to micromanage how the other parent
raises the child during his or her own parenting time. It is a virtual certainly
that on nearly any motion day in any family court in New Jersey, the docket
will include at least one case involving a parent critiquing and criticizing the
other parent's decisions over some of the most basic elements of a child's
everyday life, such as (1) what the child eats for lunch or dinner (pizza or fast
food vs. "healthy" meals); (2) the childs style of clothes (grass-stained "dirty"
jeans vs. "clean" or "presentable" pants ; (3) choice of movies and TV shows
(edgy programs vs. "wholesome" family

material), (4) choice

of

extracurricular activities (going to a baseball game or piano lessons vs. a

relative's barbeque), (5)

different curfews and bedtimes, and (6) other

subjects generally tailored for individual parental discretion.

It is true that when parties are joint legal custodians, public policy
encourages communication, cooperation, and hopefully
between the parties on parental decisions. See

a consistency

Beck v. Beck, 86 N.J. 480,

488 (1981); Grover v Terlaje, 379 N.J. Super 400, 406 (App. Div., 2005). See
Hoefers v. Jones, 288 N.J. Super 590, 601 (Ch. Div., 1994). Public policy
generally supports the concept of separated and divorced parents sharing
the rights and responsibilities of child rearing. Joint legal custody, however,
does not, and cannot, realistically require that divorced parents must agree
on every single child-raising issue. The legal reason why most couples
separate and divorce in the first place is because they have, at the very least,
"irreconcilable differences." See N.J.S.A. 2A:34-2(i). Clashes over parenting
styles will sometimes be unavoidable. This does not mean, however, that a
parent serving as "joint legal custodian", or even one who is serving as a
primary residential custodian, has an automatic right to script and control
from afar every move the other party makes in his or her own house during
parenting time. Rather, each parent has a basic constitutional right and
ability to exercise reasonable discretion on child-related issues during his
or her own parenting time, so long as such choices do not unreasonably
compromise the childs general health, safety and welfare.
For this reason, a child of divorce must often learn to adapt to two
different sets of rules and expectations in two different parental homes.
While this may sometimes prove challenging for a child in the short run, the
challenge is not entirely different than the need for adaptation in other

aspects of life, where children and adults alike must learn to adjust to
different sets of rules and expectations in various environments such as
school, the workplace, and other settings as well.
It is important for joint legal custodians to recognize and appreciate the
right of each parent to exercise reasonable parental discretion in ones own
home and under ones own watch. Without such mutual recognition and
acceptance of this basic point, separated or divorced parents often repeatedly
and unnecessarily end up returning to court,

fighting each other while

spending time, money and energy which could otherwise be positively spent
on their child.

A joint custody agreement requires a common sense decision

making process which frees the children from an ongoing web of parental
deadlock and avoids the real-life impracticality of judicial tie-breaking and
micro-family management. See Hoefers v. Jones, supra, 288 N.J. Super at 60102.
In dealing with children, the touchtone of the courts jurisprudence is the
safeguarding of a minors welfare and happiness. A court may make such order
respecting the care, custody, education and maintenance of the children as the
circumstances of the parties and the nature of the case renders fit. See
Henderson v. Henderson, 10 N.J. 390, 395 (1952). Parens Patriae is the power
of the State of New Jersey by its judicial branch to protect and watch over the

interests of children who are incapable of protecting themselves. In re Baby M,

217 N.J. Super 313, 324 (Ch. Div., 1987), rvd on other grounds, sub.nom., Matter
of Baby M, 109 N.J. 396 (1988).

This judicial authority to protect a child,

however, must not be overly read and misinterpreted as an open invitation for
a parent to come to court on "best interests" grounds

to unreasonably

challenge, restrict or infringe upon the other parent's right to a certain degree
of parental discretion during his or her own parenting time. The family court
cannot become a perpetual referee of every parenting dispute which arises
between separated or divorced parents. To the contrary, our courts have
recognized that litigation itself can potentially be detrimental to a child's best
interests. See Mackowski v. Mackowski, 317 N.J. Super 8, 14 (App. Div., 1998).
Against this

legal backdrop, the court will now address

plaintiffs

contention that defendant's decision to take the parties' child to the concert
was an inappropriate exercise of parental discretion.
The Rock Concert: Appropriate or Inappropriate Parental Choice?
In a society which strongly supports and values freedom of creativity and
artistic expression, a reasonably anticipated part of a parent-child relationship
is a parent's right to expose the child to age-appropriate works of the creative
arts.

Appreciation of music, art, drama, literature and other

creative

expression are all significant enough to be included in the curriculum of

virtually every public school in our nation. A parent's ability to expand a child's
artistic horizons through experiences both in the home and community is
tremendously important and highly worthy of

legal and social respect.

Parent/child trips to concerts, theatres, cinemas, museums, libraries, may only

provide not only intellectual and social stimulation, but in some instances
may greatly foster emotional bonding and

bridge-building

between

generations of the same household, while creating vivid lifetime memories as

well.
Pursuant to N.J.R.E. 201(b), the court takes judicial notice that over the
past sixty years, in the United States, rock has grown into one of the most
popular, deeply engrained,

and culturally significant forms

of creative

artistic expression in the history of the nation and world. People of all ages and
backgrounds regularly listen to rock music for a multitude of reasons, including
appreciation and enjoyment of the music, the lyrics, and the talents of the
vocalists and musicians performing the songs. Many popular rock artists
routinely sell out arenas and football stadiums within minutes after their
concert tickets first go on sale. Further, and with the particular support of
music video television programs and the internet, rock music has become not
only an audio art form, but a highly visual art form as well.

The court takes further judicial notice that historically, rock music has
often involved socially controversial lyrics and themes, as well as what some
people have at various times considered to
performances.

be

suggestive songs and

It is a matter of common knowledge that back in the 1950s

and 60s, when rock music (then more commonly called rock and roll), was
still in its relative infancy, millions of teens and pre-teens embraced this thennew style of music as not only exciting, but groundbreaking.
Many parents, however, did not welcome rock music with similar open
arms . Instead, there was a significant degree of parental and social resistance
and pushback by members of prior generations. Some parents and civic leaders
felt that some rock music was simply inappropriate for their children, with
songs and performances containing lyrics and themes which were at odds
with more traditional beliefs, morals, social behaviors and comfort levels. This
chapter in our nation's social history, with particular reference to the intergenerational struggle over rock music, has been the subject of significant
social research, study and commentary. See G.C. Altschuler, How Rock n Roll
Changed America, Oxford University Press (2003);

Eric Nuzum,

Parental

Advisory, Music Censorship in America, HarperCollins, (2001).

In New Jersey, a little known footnote to rock music history is that in the
1950's, at least two major municipalities, Jersey City and Asbury Park, at one

time actually banned rock concerts as contrary to the publics safety and
welfare. See Altschuler, How Rock n Roll Changed America, page 4. The
prohibitions in both cities were contemporaneously reported in the New York
Times. See Jersey City Orders Rock-and-Roll Ban, New York Times (July 10,
1956); Rock-and-Roll Gets Slowed to a Waltz, New York Times (July 12,
1956). In the 1960's, similar bans of rock shows took place in other cities such
as Cleveland, Ohio which specifically prohibited performances by then-new,
but now legendary rock music performers such as the Beatles and the Rolling
Stones. On November 3, 1964, the New York Times reported the following
development:
Cleveland to Bar Beatles and the Like in Public Hall
. . . Clevelands Public Hall or other public facilities no longer will be
available to the Beatles or other similar singing groups. Mayor Ralph S.
Locher said today. Such groups do not add to the communitys culture
or entertainment, Mr. Locher said. . . . The ban goes into effect tonight
after tonights public hall appearance of the Rolling Stones, another
group of shaggy haired English singers.
Some of the most famous and time-honored names in rock music history
were, in the 1950s and 60s, the subject of parental and cultural concern,
social disapproval, and even direct censorship. Perhaps the most notorious
example concerned Elvis Presley, now universally known as the King of Rock

and Roll. As chronicled in Parental Advisory, Presleys live performances and

on-stage gyrations were in their early days considered highly controversial,
and caused a great deal of consternation among adults convinced that he, his
music, and his performances were obscene.

Numerous concert promoters

washed their hands of the young King of Rock and Roll, fearing the
repercussions of presenting the singer and his music.

Parental Advisory,

Music Censorship in America, supra, at p. 163.

Parental Advisory further describes how in 1955, Presley was threatened
with arrest in Florida on obscenity charges if he gyrated onstage while
performing his music. Id. At 230-31. In 1956, officials in San Diego issued a
warning to Presley that he would not be allowed to perform in the city unless
he removed all dancing and gestures from his performance. Id. at 230-31. In
Presleys 1957 television appearance on the Ed Sullivan Show, cameramen
were reportedly instructed to show the performer only from the waist up so
that television audiences could not see Elvis' gyrating hips. Id., at 164-165.
Producers feared the wrath of parents across the

country" who were

concerned about the influence Presleys lewd dancing style had on the nations
youth. Id. at p. 232-233.

As further detailed in Parental Advisory, controversy and censorship of

rock music and performances in America did not stop with Elvis Presley. For
example, in 1965, the Rolling Stones had difficulty keeping their new song,
Satisfaction, on some radio playlists because radio programmers feared that
the songs suggestive title would alert censors to its partially sexual theme. Id.
at 165-166.5

Thus, many

stations across the country began banning

Satisfaction, because they believed the lyrics were too sexually suggestive.
Id. at p. 237-238. Additionally, in 1966, Time magazine reported that reported
that many radio stations were banning Bob Dylans song, Rainy Day Women
#12 & 35, due to some peoples interpretation of certain repeated lyrics in
the chorus, (i.e., Everybody must get stoned) as supportive of drug use. See
Rock n Roll Going to Pot, Time , July 1, 1966.

Accordingly, by the mid

1960's, some of the most successful names in rock music, and rock music itself,
had more than a fair share of opponents who feared that the product of the
performers creative artistic expressions would be fundamentally detrimental
to minors.
From these examples of social controversy and parental pushback in the
1950's and 60's, we now fast forward to present day America. In recent

The Rolling Stones originate from Great Britain, but are generally recognized as one of the most culturally
influential and significant rock groups in American history.

years, the United States government has formally declared Elvis Presleys
Tennessee home of Graceland, as well as the music studio where Presley
recorded his first demo record (Sun Studios), as National Historic Landmarks.6
Further, the United States Government has officially honored the Rolling
Stones record, Satisfaction by placing same into the National Recording
Registry as a "culturally, historically, or aesthetically significant"

sound

recording, to be preserved "for all time for future generations. 7 Still further,
in 2012 the President of the United States bestowed upon Bob Dylan

the

Presidential Medal of Freedom, the nations highest civilian honor. This award
is presented to individuals who have made especially meritorious
contributions to the security or national interests of the United States, to world
peace, or to cultural or other significant public or private endeavors.

Essentially, the past concerns and fears of parents and groups in the 1950s

A National Historic Landmark (NHL) is a site which the United States Government has officially declared
as "an outstanding aspect of American history and culture http://www.nps.gov/nhl/learn/intro.htm (last
visited January 23, 2014). Elvis Presleys home, Graceland, was formally declared an NHL on March 27, 2006.
Sun Studios, where Presley recorded his first record, was declared an NHL on July 31, 2003. See National
Historic Landmarks Survey, http://www.nps.gov/nhl/find/statelists/tn.htm. The NHL plaque at the location
honors Presley's historical contributions to American culture.
6

Pursuant to the National Recording Preservation Act of 2000, the United States Government officially selects
sound recordings which are deemed "culturally, historically, or aesthetically significant" for placement in the
National Recording Registry to be preserved "for all time for future generations. In 2006, the government
bestowed such status upon Satisfaction. See
official Library of Congress website:
http://www.loc.gov/today/pr/2007/07-039.html (last visited January 23, 2014).
7

http://www.whitehouse.gov/the-press-office/2012/04/26/president-obama-names-presidential-medal-freedomrecipients (last visited January 23, 2014).

and 60s, that the musical works of these rock artists would somehow hurt or
morally corrupt America's youth were, in time, rendered essentially obsolete.
The importance of rock music in American culture is not limited to the
examples of Elvis Presley, the Rolling Stones and Bob Dylan. There have been
countless artists who have contributed to American culture through musical
works and performances. In fact, there is presently an official Rock and Roll
Hall of Fame in Cleveland, Ohio, the same city which had previously banned
the Beatles, the Rolling Stones and other "shaggy haired" singers from
performing rock concerts back in 1964. According to the Hall of Fame's 2011
annual report and budget analysis, fifteen percent of its operating revenue is
publicly funded through governmental monies.9 Further, in 2012, the United
States House of Representatives officially initiated a congressional "Rock and
Roll Caucus" on the development of rock music in the United States.10 As set

See 2011 Rock and Roll Hall of Fame Annual Report, page 11;
http://rockhall.com/media/assets/files/Annual_Report_2011.pdf (last visited January 23, 2014).
10

The Rock Caucus was first formed in the 112th Congress for the stated purpose of promoting the collection,
preservation, and interpretation of Rock and Roll, and educating others on the impact Rock has made on American
society.

forth in an official statement by founding sponsor, Congresswoman Marcia

Fudge of Ohio:
The mission of the (Congressional) Rock and Roll Caucus is to promote
the collection, preservation and interpretation of the impact rock and
roll music has made on our world. Members of the Caucus have an
interest in promoting the educational, cultural and economic impact of
this unique American art form and work to enhance access for the
American people to resources in order to educate people about Rock
and
Roll,
its
roots,
and
its
impact
on
society.
http://fudge.house.gov/congressional-caucuses/
(last visited
January 23, 2014).

The foregoing examples demonstrate the reality that notwithstanding the

sometimes controversial or suggestive nature of some songs, lyrics, and stage
performances, rock music is nonetheless a highly legitimate and culturally
significant form of creative artistic expression in American society. Of course,
if the best way to predict the future is to study the past, then it is logical to
predict that there will always be new rock songs and performances which
again stir the pot of social controversy and debate over age-appropriateness
for teens and pre-teens alike. In this day and age, it is not too hard to search
on the radio, television or internet to find current rock songs and performances
which may raise the same type of parental reactions and objections as those
raised by parents years ago to Elvis Presley, the Rolling Stones, Bob Dylan and
other rock artists. The specific reasons for objections may vary greatly from

parent to parent, based upon subjective opinions, viewpoints and parameters

concerning (a) the subject matter of a song , or (b) the use of profanities or
"curse words" in some lyrics, or (c) the production of allegedly suggestive
and provocative videos or stage performances, costumes and choreography.
For these reasons, rock music CDs and concert DVDs which are sold in
retail stores often contain the following visible black-and-white label:

According to the Recording Industry Association of America (RIAA),

the parental advisory label is a message affixed to audio and video recordings
in the United States containing language and/or content which some parents
may find offensive. The origins of the label trace back to 1985, when the RIAA
worked with the Parent Music Resource Center (PMRC) and the National
Parent Teacher Association (NPTA) to address concerns regarding explicit
content in sound recordings. The organizations reached an agreement that
certain music releases containing explicit lyrics and adult content would be
identified so that parents could make intelligent listening choices for their

children. In 1990, the PMRC worked with the RIAA to standardize the label,
creating the now-familiar black and white design.11

As detailed on the

present RIAA website:

. . . ( t)he RIAA has provided record companies and artists with the
labeling tools that alert parents to explicit content and help them make
the right decisions about the music to which their children listen. The
recording industrys PAL program lets parents undertake that
responsibility for their families and respects the core American value of
freedom of expression that tolerates unpopular speech and frowns upon
censorship.12
While the parental advisory process has been part of the rock music sales
industry for nearly twenty-five years, the label is not legally mandated by the
federal government. Nor does the appearance of the label on a CD or DVD
automatically mean that

there

is

anything illegal, or officially age-

inappropriate for a minor to hear or see, or that a parent who allows a child
to listen to labeled
wrongful,

content is presumptively

negligent, or

exercising inappropriate,

otherwise unreasonable parental discretion and

judgment. Rather, the label is a mechanism utilized by the artist and record
company to voluntarily advise those who might otherwise be unfamiliar with

11

http://www.riaa.com/toolsforparents.php?content_selector=parental_advisory (last visited January 23,

2014).
12

Ibid.

a particular CD or DVD , that some parents might find some of the material
to be age-inappropriate for their children.
The advisory label itself is highly general, and does not in any specific way
identify the quality, quantity and nature of any explicit or mature content, or
the frequency of same on a recording itself. For example, if there are some
profanities in a few but not all songs on an album, the advisory label does not
quantify the number of profanities, or whether they appear in only one song,
or in multiple songs, or in every song.

Given the countless levels and

variations of arguably explicit lyrics and mature themes which may exist in
any song or compilation of songs, it is nearly impossible for a parent to
conclude, from reading a generic advisory label alone, whether certain songs
and/or video performances are or are not age-appropriate for a particular
child.
Even if a rock album has songs with some profanities or foul language, a
parent deciding whether a rock album is or is not age-appropriate for a child
may logically consider the frequency or infrequency of same, such as whether
there are a only handful of incidental and sporadic curse words spread over
the course of a multi-song album, as opposed to

a seemingly

non-stop

avalanche of obscenities. Some parents may also consider as relevant the

actual themes and messages of the particular songs as well, which may be

material and valuable to a young listener even if there are in fact some
profanities contained in the lyrics themselves.
Another fact-specific consideration is the age and maturity level of the
particular child at issue. A parent s view on age-appropriateness of a rock song
may differ radically when a child is a five year old kindergarten student as
opposed to a teen or a pre-teen, and may further differ between children of the
same exact age based upon their comparative emotional maturity levels.
The law does not prohibit parents from permitting their own children to
experience works of the creative arts which contain some verbal profanities.
The reality is that minors in the United States are potentially exposed to
profanities all the time through movies, television, and the internet. Further,
the fact that a minor hears a profanity in the context of an artistic performance,
with parental consent, does not automatically render a parent's decision
wrongful or age-inappropriate. To the contrary, in the context of story-telling
as creative art,

profanities are frequently implemented as part of socially

acceptable artistic dialogue.

Perhaps the most well-known example of this point is found in the classic
1939 film, Gone With the Wind, a three hour fictional account of a romantic
affair between two nineteenth century characters, set against the historical
backdrop of the American Civil War. At the end of the movie, the lead male

character, Rhett Butler, delivers his final speaking line to the lead female
character, Scarlett OHara, stating: Frankly my dear, I dont give a damn.
Upon the film's release

seventy-five years ago,

the word damn was

considered by many as profane and culturally unacceptable for public uttering,

and its use in the movie was actually considered by many at the time to be
socially shocking. However, this one sentence ultimately grew critical to the
film's legacy as a cinematic and artistic masterpiece. In fact, in 2005 the
American Film Institute named this line as the single greatest quote in the
history of American film.13
It is likely that back in 1939, some parents actually refused to allow their
children to see Gone with the Wind because of what they considered to be
the age-inappropriate nature of Rhett Butler's language. While such parents
certainly had the right to their personal opinion on the matter, the reality is
that time has rendered such objections to Gone with the Wind

socially

extinct. Similarly, parental objections to many other artistic works, including

musical works, have also gradually diminished over time. As noted by Justice
Harlan over forty years ago in the United States Supreme Court case of, Cohen

See AFI website at http://www.afi.com/100years/quotes.aspx (last visited January 23, 2014). According
to the website, the choice of the greatest quote in movie history was selected by a jury of over 1,500 leaders
from the creative community, including film artists, critics and historians. Selection criteria included choosing
quotes from American films which circulate through popular culture, become part of the national lexicon and
evoke the memory of a treasured film, thus ensuring and enlivening its historical legacy.
13

v. California, "one mans vulgarity may be anothers lyric. Id., 403 U.S. 15, 25,
91 S.Ct. 1780, 1788, 29 L. Ed. 2d 284, 294 (1971). While not every film is an
universally acclaimed artistic classic like Gone with the Wind, and while not
every rock song is honored by the United States Government, the use of some
incidental profanities in the creative arts is presently deemed acceptable as
reasonable by many independent-thinking minds in our society.
Beyond the issue of profanity, there may be specific instances where the
content, nature and message of a particular rock song or performance is so
clearly and objectively age-inappropriate for minors that reasonable minds
could not seriously differ on the matter. By way of extreme example, if a
performer sings a song which expressly supports and encourages homicide, it
would be objectively difficult to justify a parents decision to permit his or
her young child to embrace same.

Most rock songs, however, do not fit into

this type of extreme category. In the majority of cases, the issue of ageappropriateness becomes far less objectively cut and dry than in this
example, and much more a matter of personal choice and discretion of each
individual parent. Thus, a song which contains some incidental profanities, or
deals with mature themes in a narrative format, may in fact be personally
acceptable to some parents as age-appropriate for their

children, and

unacceptable to other parents of children the same exact age. In such cases,

there may be no definitive, absolute right-or-wrong answer, other than the

right of each parent to make a personal

decision regarding

reasonable

parameters of a child's exposure to specific works of musical artistic expression

while in his or her physical care.
Even if a parent concludes that a particular song is age-inappropriate
for a child, a rock album might contain anywhere between ten and twenty
additional songs which raise no parental concerns at all. The same is true for
a set list at a live rock concert performance. If hypothetically, there are fifteen
songs on an album or at a concert, and one or two of these songs are arguably
age-inappropriate, this does not automatically mean that the entire album or
concert becomes age-inappropriate when evaluated as a whole product.
Rather, issues regarding the lyrics of certain limited songs in a collection are
just some of many factors which a reasonable parent might weigh, under the
totality of the circumstances, in determining whether to permit a child to listen
to a specific album or attend a particular rock concert.
It is always possible that a parent crosses the line and commits a clear and
objectively unreasonable abuse of discretion, such as willingly exposing a
young minor child to pornographic or sexually obscene material.

Certainly,

if a work of creative art is objectively pornographic or obscene in character,

then a reasonable parent should not condone their young minor child's
exposure to same However, common sense makes clear that not every song or
performance which uses some profanities, or which is sexually suggestive or
provocative, automatically rises to a level of obscenity. Rather, there is often
a question of when a song, or any other work of creative artistic expression,
crosses the line separating sexual suggestiveness and obscenity.
That being stated, there are and always will be some artistic works and
performances

which are clearly for adult audiences only, and which are so

objectively inappropriate for children that no

reasonable

person could

legitimately disagree (i.e., the objective reasonable person" standard). Prior

attempts to objectively define such a bright line in specific written legal
language, however, have long been challenging. In fact, this difficulty spawned
one of the most famous legal quotes in the history of the United States
Supreme Court, authored by Associate Justice Potter Stewart in his concurring
opinion in Jacobellis v. Ohio, 378 U.S. 184, 197 (1964). In determining whether
a particular movie, as a work of creative artistic expression, was or was not
"obscene", the Justice stated:
I shall not today attempt further to define the kinds of material I
understand to be embraced within that shorthand description; and
perhaps I could never succeed in intelligibly doing so. But I know it

when I see it, and the motion picture involved in this case is not that.
(emphasis added)

While Jacobellis involved a film as opposed to a rock album, the same logic
is naturally relevant to other works of the creative arts, including rock music.
Thus, the appropriateness of a parent's decision to permit a child to listen to
certain rock songs, or attend a certain rock concert, must be very fact-sensitive
and determined by

utilizing practical common sense. Generally, the

Constitution leaves matters of taste and style largely to the individual. Cohen
v. California, supra, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L. Ed. 2d 284, 294
(1971).

This logic certainly applies in the context of parental judgment

regarding creative artistic expression, whether in the form of rock music or

otherwise. If an artistic work is suggestive but not obscene, then a parent
generally must have the freedom and right to exercise reasonable discretion
on whether or not to permit their child to experience the work or performance,
without penalty or threat of adverse legal consequence.
In the present case, plaintiff has objected to defendant's decision allowing
their daughter to attend a P!nk rock concert. Pursuant to N.J.R.E. 201 (b), the
court takes judicial notice that P!nk is presently one of the most well-known
and honored rock artists in the United States and world. Research reflects that

in a music career spanning over a decade, she has won multiple recognitions
and honors for her work in the entertainment industry, including fifteen
Grammy award nominations and three wins in 2002, 2004, and 2011.14
Billboard magazine reports that P!nk has sung fourteen Top 10 hits, including
four number one songs, and she has sold over fifteen million albums in the
United States alone.15
The P!nk rock concert tour, inclusive of the December 11, 2013 show
at the Prudential center in Newark, was in support of the performers most
recent album, entitled The Truth about Love. The audio CD, as well as a
video DVD of a similar P!nk concert recently performed at another venue, are
each currently sold to the public in music stores throughout the country.16
Both the CD and DVD contain the black and white parental advisory notice of
explicit content. P!nk also has a Greatest Hits CD which contains many of
the songs on the set list at the December 11 concert, and which also carries
the parental advisory label. It is noted, however, that there are also alternate

14

See official Grammy website, www.grammy.com (last visited January 23, 2014).

See www.billboard.com/articles/news/5923144/pink-signs-multi-album-deal-with-rcarecords?utm_source=twitter.
15

Not only does the concert DVD reflect the general nature of the rock concert, but as previously noted,
portions of the December 11 Newark concert itself are posted on You Tube and accessible for public review.
16

versions of these CDs available in stores which contain s edited and more
radio-friendly versions of some songs, and which do not feature the parental
advisory labels .
Plaintiff has objected to his daughter's attendance at the P!nk concert
because of what he contends are age-inappropriate songs, as well as sexually
suggestive dance performances.17

A review of the concert set list, as well as

the lyric sheets and videos from the concert on You Tube, reflects that there
are in fact some profanities and curse words in some of the songs. The use of
profanity, however, is

sporadic and incidental,

and not unreasonably

pervasive throughout the albums or show. To the contrary, a very substantial

part of the lyrics do not involve any profanities at all. More significantly, the
lyrics in many of the songs are not only age-appropriate for teens and preteens in 2014 America, but from an artistic standpoint are particularly
noteworthy in addressing

important social themes and messages which are

objectively relevant and very relatable to young Americans in high schools and
junior high schools throughout the country.

Defendant quotes to an article reviewing the Truth about Love concert in the Hollywood Reporter, which
provides the set list of songs and also describes the dancing to which plaintiff objects as three males "molesting"
the singer. It is also noted, however, that the same review overwhelmingly commends Pink's performance and
the concert itself.
17

For example, in her song, The Great Escape, P!nk poignantly sings about
the very real problem of young people physically harming themselves over
stressful situations, and contains lyrics which clearly attempt to provide
listeners with a message of hope:
I can understand how the edges are rough
And they cut you like the tiny slivers of glass
And you feel too much
And you don't know how long you're gonna last,
But everyone you know, is tryng to smooth it over,
Find a way to make the hurt go away,
But everyone you know, is tryng to smooth it over,
Like you're trying to scream underwater,
But, I won't let you make the great escape,
I'm never gonna watch you checkin' out of this place
I'm not gonna lose you
'Cause the passion and the pain
Are gonna keep you alive someday
Gonna keep you alive someday

In another song, Perfect, Pink sings about the stress people feel when
they judge themselves too harshly for their own faults. The lyrics point out
another very important message for young adolescents, i.,e., that one does not
have to be perfect to be strong and move forward in life: 18

The original version of the song was entitled F. . .g Perfect . However, the singer also released a radiofriendly version of the song with all profanities redacted, and this was the version she sung at the December 11
concert. Moreover, even if the singer performed the original version at the concert, the inclusion of the curse
word in the song would not have necessarily and automatically rendered the song unfit or age-appropriate
18

Made a wrong turn once or twice

Dug my way out blood and fire
Bad decisions that's alright
Miss 'No way, it's all good'
It didn't slow me down.
Mistaken, always second guessing
Underestimated, look I'm still around
Pretty, pretty please, don't you ever, ever feel
Like you're less than, less than perfect
Pretty, pretty please, if you ever, ever feel
Like you're nothing, you are perfect to me

The messages in these examples are inherently valuable to teens and preteens who often grow up in a world of relentless stress, pressure, tension and
self-doubt. These songs and messages are age-appropriate in this case, and
the fact that the artist may use some profanities in these or other songs on an
album or in a concert set list does not logically disqualify the entire work or
performance as age-inappropriate for a teen or pre-teens ears.
The court further notes the reality that for a given listener, the artistic
value of music may expand well beyond a song's lyrics, and involve many other
very important and independently creative components such as a songs

lyrics, given the importance of the message in the song itself. The issue of age appropriateness would have
again come back to subjective parental discretion, and defendant would not be deemed to have abused such
parental discretion merely by permitting her daughter to listen to the unredacted version of this song. In 2011,
the song was nominated for a Grammy award, and was one of the most popular songs in the United States that
year.

melody, rhythm, and beat, along with the performing talents of the singer, and
musicians themselves. This concept is so significant that

under federal

copyright law, the United States Government extends the opportunity for
separate protection to the artist for the music, the lyrics, and the recorded
performance, all as separate elements of valuable creative artistic expression.
See 17 U.S.C. 102(a)(2 ); Circular 56a.
At the P!nk concert, the YouTube videos reflect that there are clearly many
major advanced artistic components of the rock concert beyond simply the
song lyrics. These include but are not necessarily limited to: (a) the singers
vocal talents, (b) the melody and rhythm of the songs; (c) the performance by
the backup vocalists and musicians ; (d) the stage design and special effects; (
e) the costume design; (f)

the choreography of the dance routines. As

previously noted, A.Z herself said that, in her opinion, the most important part
of a song was not even the lyrics but the music. Further, the part of the concert
performance which A.Z enjoyed most was not either the lyrics or the music, but
rather P!nk's

aerial gymnastics and

aerobics.

In other words, even if

hypothetically the child did not hear or understand a single lyric in any song at

the concert, from an artistic standpoint there was still very much for her to see,
hear and experience by attending the concert in person.19
Regarding any allegedly inappropriate dancing, there was no evidence in
the videos or testimony presented by plaintiff that the choreography was in any
way objectively inappropriate. To the contrary, all of the dancers appeared
highly trained, skilled and professional. Every performer was wearing clothes,
and while some people might conceivably consider some of the dancing to at
times be sexually suggestive,20 there is nothing which could even remotely or
reasonably be considered "obscene" under the standard set forth by Justice
Stewart in Jacobellis.
Overall, the court finds that in permitting A.Z to attend the performance,,
defendant was allowing her daughter to enjoy, for the first time the culturally
exciting experience of attending a major rock concert. This event involved
over ten thousand other attendees from multiple backgrounds and walks of

19

The reality with rock music is that in some instances, the listener cannot even clearly hear all of the lyrics and decipher
what the performer singer is even singing about in the first place. Nonetheless, the listener may still greatly appreciate
and enjoy the song as a work of musical art. This situation may be especially true in a large concert arena involving
thousands of screaming fans, where people may not even be able to fully hear and understand the person next to them,
much less all of the lyrics sung by the performer.
20

There were some moments during certain songs when male dancers were, in choreographed fashion, trying to grab
hold of the singer. However, this dance sequence was specifically in the context of a rock ballad about an independent
woman standing up to men who acted inappropriately towards her. Thus, from an acting and artistic standpoint, the dance
sequence and choreography made logical sense and was not either obscene or objectively inappropriate under the
circumstances.

life, including other children, all coming together in one venue for an evening
of singing, dancing, and positive entertainment. Further, defendant did not
simply drop A.Z. off

unattended at the front gate of the arena in

an

irresponsible fashion. Rather, she personally accompanied A.Z. to the show and
was there at all times to supervise and protect her daughter's well-being. In
permitting the child to be part of this event, while chaperoning her in a safe
and responsible manner, defendant did absolutely nothing wrong as a parent.
To the contrary, the court finds that defendant acted appropriately and
responsibly in her care of A.Z. on the evening in question.
Perhaps most important, however, is the fact that A.Z. enjoyed a
parent/child night out together, sharing an experience which was clearly very
important to the child in her young life. In this day and age, it is easy for parents
to put off important bonding experiences with their children until a tomorrow
which simply never comes. Here, defendant invested her time, energy and
money into providing the child with a memorable mother/daughter evening
together. The positive value of this experience is not diluted in any fashion
merely because there may have been some incidental curse words or allegedly
suggestive themes during some of the songs at the concert .
Regarding plaintiff-father, the court understands his general parental
desire as a parent to protect and shield his daughter as she approaches her

teen years. The court further wholly appreciates the challenges which any
parent faces in raising an adolescent son or daughter in today's society. The
truth of the matter, however, is that there is also much to be said for the value
of parental flexibility. Children do not grow up in a bubble. While a parent
generally has a right to decide that an eleven year old child in his or her care
should or should not listen to certain songs, or watch certain movies or TV
shows, or read certain books, the implementation of overly rigid restrictions
on a teen or pre-teen sometimes has a way of severely backfiring on a parent.
While reasonable rules, limits and parameters must clearly be set for any
child,

a parent with an open mind for compromise can potentially

demonstrate to the child an important knowledge of, and respect for, what is
important in their child's own life. Such a demonstration can potentially go a
very long way in enhancing and fortifying the parent/child relationship itself.
As William Shakespeare noted, it is a wise parent who knows his or her own
child. See The Merchant of Venice, Act 2, Scene 2, Page 3 (1596-98).
In this case, the court finds that while the parties may have had a legitimate
difference in

subjective personal opinion about the P!nk rock concert,

defendant has in no way, shape or form exceeded the boundaries of reasonable

parental judgment in electing to take the child to the show during her own
scheduled parenting time. Her decision did not subject the child to any

unreasonable risk of harm, or compromise A.Zs health, safety or welfare. To

the contrary, when all the smoke from the custody litigation clears, it will be
self-evident that all which happened here is that a young girl went to her first
rock concert with her mother and had a really great time.
Defendant's decision to allow the child to attend the performance was not
objectively inappropriate or an abuse of parental discretion, and thus will not
result in any negative inferences against her in the parties' ongoing custody
litigation. 21

21

Subsequent to this decision, the parties settled their ongoing custody dispute, with the parties continuing
sharing joint legal custody, and defendant-mother serving as primary residential custodian with plaintiff's
consent. There is no further action presently pending.