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."

Mrs. Shak filed for contempt of this order, arguing that Mr. Shak's social media posts disparaged her and disclosed details of their litigation. Mr. Shak challenged the order, arguing that the judge did not have the authority to enter an order which contained a prior restraint on his speech. In response, the judge issued a subsequent order containing more specific restrictions in an attempt to make the prohibitions narrowly tailored. The new order provided clear time frames for the social media restraint (i.e., until the parties had no common children under fourteen years old), limited the restriction to only prohibit posts "on any social media or other Internet medium," narrowed the prohibited disparagement to comments "about the party's morality, parenting of or ability to parent any minor children," and listed specific examples of expletive words that were prohibited. When the parties had any children between the ages of 3 and 14, the new custody order further prohibited disparaging comments if the children are within a certain range of the party or could see, read or hear the disparagement. The Massachusetts SJC granted Mrs. Shak's application for direct appellate review of the order.

After review of the additional detail added to the non-disparagement provisions of the new order, the Massachusetts SJC found in favor of Mr. Shak and vacated these provisions. The SJC made it clear that nondisparagement orders "are, by definition, a prior restraint on speech." The SJC explained that such restraints are only permissible "where the harm expected from the unrestrained speech is grave, the likelihood of the harm occurring without the prior restraint in place is all but certain, and there are no alternative, less restrictive means to mitigate the harm." While the Massachusetts SJC acknowledged that a compelling interest exists to protect children from being exposed to disparagement between their parents, the court noted that "merely reciting that interest is not enough to satisfy the heavy burden of justifying a prior restraint." The SJC, thus, concluded that there was "no showing that any harm from the disparaging speech is either grave or certain," and these provisions of the Order were vacated.

Like the trial court orders in Massachusetts, custody orders in Pennsylvania routinely contain provisions which prohibit each party from speaking negatively in a manner that derogates and derides the other party, particularly in front of the children. These provisions are often memorialized in an appendix to the custody order, but they are still considered to be part of the order, and a violation of same could result in a contempt finding and/or grounds to modify custody. If litigants challenge these prohibitions in Pennsylvania, in light of the Shak ruling, there is a question as to whether these prohibitions will similarly be found to be unconstitutional like they were in Massachusetts.

There are certainly benefits to preventing parties from disparaging each other in custody matters, particularly on social media or by way other public means where the children, their peers, or members of the community could easily find this information presently or in the future. The SJC in Massachusetts noted that the child at issue in that case, a toddler, was too young to read or access social media, and thus, there was no evidence that the social media posts harmed the child. This leaves open the possibility that such posts could be prohibited if clear harm was shown to the child.

The SJC in Massachusetts also noted that their ruling "does not impact nondisparagement agreements that parties enter into voluntarily," nor would it prevent a party from filing a claim for intentional infliction of emotional distress, defamation or for a harassment prevention order. If a party felt strongly about the inclusion of non-disparagement provisions in his/her custody order, resolving the matter voluntarily by way of stipulation would bolster the chances that such nondisparagement provisions would be upheld and enforced if challenged in the future.

Most importantly, and perhaps lessening the impact of the ruling, the court in Massachusetts acknowledged that the disparagement issue would be factored into any subsequent custody determination when considering what is in the best interests of the child. In Pennsylvania, the factors for determining custody similarly allow a court to consider one party's disparagement of the other when making an initial custody determination or modifying a current custody order.  This would occur even if the court could not prohibit disparagement prospectively. One party's disparagement of the other party could, thus, result in less custodial time for that party; an outcome which should be enough to deter the disparaging speech in the first place. As the Massachusetts court ultimately concluded, "the best solution would be for parties in divorce and child custody matters to rise above any acrimonious feelings they may have, and, with the well-being of their children paramount in their minds, simply refrain from making disparaging remarks about one another." Putting aside this ideal standard and recognizing that tension often exists between parties involved in custody litigation, it is critical that bad behavior by a party can be reconciled, perhaps not by restraining speech proactively, but by assessing the impact of this behavior on the child in making a custody determination.

Jennifer A. Brandt is chair of Cozen O'Connor's family law group. She has significant experience representing parties in divorce, custody and support/alimony matters throughout both Pennsylvania and New Jersey. She is a frequent commentator for national and local media, appearing on outlets such as Fox News, CNN and Court TV. Brandt also regularly contributes to national and local publications and is the author of a legal blog, Family Law Focus, at www.familylawfocusblog.com.

Megan K. Feehan is a member of the firm's family law group. She devotes her practice to educating and guiding her clients through the complexities of divorce, custody, support, and related family law issues in Pennsylvania and New Jersey.