Custody orders often include nondisparagement provisions which prohibit parties from speaking negatively about each other in front of their children. The question of whether these provisions should be viewed as necessary to protect the children’s best interests or as an infringement on one’s right to free speech under the U.S. Constitution was recently addressed in Massachusetts. In the case, Shak v. Shak, the Massachusetts Supreme Judicial Court (SJC), found that a nondisparagement provision included in a custody order is an impermissible restraint under the First Amendment right to freedom of speech. The outcome of this case was surprising to many family law practitioners, because logic dictates, that courts should have the ability to control the behavior of parties in custody matters to protect children from the psychological and emotional harm that could result from the disparagement of one parent by the other. One common means of preventing this harm, preemptively, is through the use of non-disparagement provisions in court orders. Given the outcome of the Shak case, there is a question as to whether litigants in Pennsylvania and other states will now challenge these provisions as being unconstitutional.

The order entered by the trial court in Shak initially provided, in pertinent part that:

  • Neither party shall disparage the other—nor permit any third party to do so—especially when within hearing range of the child.
  • Neither party shall post any comments, solicitations, references or other information regarding this litigation on social media.”

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