Shak v. Shak, ____ Mass. _____, SJC-12748 (2020).
Nondisparagement clauses are ubiquitous in custody agreements and orders. Generally, they are a blanket prohibition on a parent from “talking bad” about the other parent in a form that the minor child(ren) will understand (whether in their presence or on social media, etc.). These clauses are commonly included so that the child will grow up in a less tumultuous environment, free from psychological harm that stems from hurtful exchanges of words. In fact, our own courts have guidelines that are commonly incorporated into custody orders. However, the Massachusetts Supreme Court recently reviewed these clauses under a constitutional lens, and the result is quite interesting.
1. Facts: The Mother filed an emergency motion to remove the Father from the marital home based on the Father’s aggressive behavior, temper, threats, and substance abuse. A judge issued the order to vacate and granted Mother sole custody. In a temporary order, the judge included provisions that “[n]either party shall disparage the other – nor permit any third party to do so – especially when within hearing range of the child[,] and “[n]either party shall post any comments, solicitations, references or other information regarding this litigation on social media.” Once Father made such posts on social media platforms and shared them with mutual friends, Mother filed for civil contempt. Father then raised free speech issues. The judge failed to find contempt and ruled that the temporary order was indeed an unlawful prior restraint on speech. The judge then sought to cure the previous language by narrowly tailoring the provisions that borrowed thematically from time, place, and manner restrictions on speech. The judge then submitted those provisions, along with the constitutional question to the state supreme court for review.