Non-Disparagement Orders in Custody Instances | Burns & Levinson LLP

As my partner Andrea Dunbar recently wrote, it is inappropriate to post negative comments about the opposing party in a custody matter on social media. But can the court forbid that? In most cases the answer is no.

Despite the fact that the Commonwealth of Massachusetts has a compelling interest in protecting children from denigration between their parents, freedom of expression is protected by the First Amendment to the US Constitution. The First Amendment restricts the government’s power to restrict expression just because the government does not like the subject matter, idea, or content of the message. An order from a Probate and Family Court judge that instructs one party not to post comments about the other parent on social media is known as a “non-disparaging order”. These types of commands are a prior caveat of speech. In order for a prior restriction to be allowed, the speech must be truly exceptional. This requires that the harm expected from the uninhibited speech must be severe, the likelihood of speech without the prior restraint be as good as certain, and the arrangement being the least restrictive way of stopping the serious harm. The Massachusetts Supreme Court has ruled that orders not to disparage statements made about another parent – even if those utterances are profane, vicious, and vulgar – are unconstitutional unless there is evidence of imminent serious harm to a child as a result of that disparagement. In most cases, the court cannot cause serious harm and, in general, cannot restrict the freedom of expression of the parents by its own order. However, the court may uphold an agreement made by the parties to a custody case not to belittle each other, be it on social media or otherwise.

While the court may be forced to allow a parent to exercise their freedom of expression, it is still wise to avoid doing so so that you do not lose parental leave because you are unable to act for the best interests of the child.

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