Badmouthing in Divorce: Parental Alienation or Free Speech?

Man shouting into telephone

“Standard” Parenting Orders Prohibit Badmouthing

A big part of any family law attorney’s practice is dealing with the parenting arrangements for a couple in the process of a breakup. If we’re talking about a married couple, these arrangements are usually part of the divorce. If the parents weren’t married in the first place, it is handled through either paternity or Allocation of Parental Responsibilities proceedings.

Even if parents are not getting along, a parent should not badmouth the other. Courts expect that they will not drag their children into their personal or legal battles by disparaging the other parent to the children. That can be considered a form of parental alienation, and it could be fairly said, that a judge’s primary concern in any custody case is to minimize any psychological trauma on the children. It has long been understood that the disparagement form of parental alienation is potentially damaging to the children.

In Colorado, to help prevent parental alienation, courts often order parents to not disparage, insult, or otherwise badmouth the other parent in a way that the children can observe. This practice is meant to give an extra layer of accountability to parents, especially as they are going through the first months after what is often a personally traumatic break-up and the temptation to badmouth the other is highest.

At Graham.Law, our parenting plans typically contain a “prohibited conduct” section that forbids various types of negative conduct, including badmouthing, which put kids in the middle of disputes, including:

“Demeaning, disparaging, or questioning the judgment of, the other parent, his/her significant other, or members of his/her household or immediate family, to the children or in the children’s presence,

Attempting to control, dissuade, or influence negatively the children’s activities during the other parent’s time, or criticizing those activities to the children.”

If a parent breaks these orders and continually badmouths the other, the aggrieved parent could conceivably ask the court to hold the first in contempt, assuming the conduct could be proven (courts are not going to have kids testify to what the other parent told them, so the disparagement really would have to be public).

If the conduct is pervasive enough, it could be considered parental alienation, and result in even stronger measures, including changing the parenting schedule. It’s hard to conceive of lofty free speech arguments prevailing in a Colorado domestic relations court.

Massachusetts Rejects Non-Disparagement Clause

A new case from the Supreme Court of Massachusetts could call the ordinary “no badmouthing” orders into question on free speech grounds. First, it is important to note that a case from Massachusetts does not bind Colorado Courts. However, cases from other states often give clues to the ways judges (who, no matter where live, often read the same legal journals and articles) think. Therefore, the Massachusetts case may be a harbinger of things to come to Colorado. 

In Shak,1Shak v. Shak (Mass. 2020). the court dealt with an anti-badmouthing injunction that would be fairly non-controversial in Colorado parenting plans, containing the following prohibitions:

“6. Neither party shall disparage the other — nor permit any third party to do so — especially when within hearing range of the child.

7. Neither party shall post any comments, solicitations, references or other information regarding this litigation on social media.”

The mother claimed that the father had violated the injunction by disparaging her publicly, then sharing the posts with her religious community and her clients. She initiated contempt proceedings against the father.

The father objected, and among his grounds were that this injunction violated his First Amendment right to free speech as it was an unlawful “prior restraint.” Prior restraint is defined as: “administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.”

Of course, whole books have been written about the First Amendment and its associated case law, so we won’t go into much of that here. In (super) brief, the amendment does not allow the government to prevent citizens from saying or writing anything unless the words in question fit into a narrow exception identified by the case law, perhaps the most notable of which are obscenity and true threats. Generally speaking, a restraint on free speech may be constitutional if the exception is very narrow and very important.

A restraint on free speech which is ordered before a person has even had the chance to make the statements is called “prior restraint” and is almost always unconstitutional.

Are Orders Against Badmouthing Free Speech Violation?

The trial judge agreed with the father that, as written, the order was overly broad and an infringement on his freedom of speech. That judge issued a more narrowly-tailored order moving forward which, as long as the child was under 14, prohibited either parent from (1) Posting specific disparaging language about the other to social mediate, and (2) disparaging the other in earshot of the child. In other words, to prevent parental alienation, the court only limited disparagement which impacted the child

Badmouthing Prohibition vs Free Speech
Constitutional Right to Badmouth?

The Massachusetts Supreme Court reasoned, citing the U.S. Supreme Court:

“…in order for prior restraint to be potentially permissible, the harm from the unrestrained speech must be truly exceptional. A prior restraint is permissible only 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 prior restraints on free speech are difficult to pass constitutional muster, it is not impossible. So the question then becomes, whether or not these parenting orders prevent the kinds of grave and likely harm described above. The Massachusetts Supreme Court does acknowledge that the state “has a compelling interest in protecting children from being exposed to disparagement between their parents.”

Ultimately, however, the issue was whether such speech would harm the child – something most of us would think is common-sensical (and affirmative). “Harm to the child . . . should not be simply assumed or surmised; it must be demonstrated in detail.” As the mother was unable to prove the child would be harmed by hearing disparagement, the non-disparagement clause in that case was held to be an unconstitutional restraint on free speech.

And herein lies the problem – the mother, and the trial court, assumed that disparagement was parental alienation and harmful to the child, without actually putting on any evidence. The MA court did note, however, that had the parents agreed to a non-disparagement clause (as in a negotiated parenting plan, for example), such clause would be legally binding.

Free Speech vs Badmouthing in Colorado Family Law?

Shak is a Massachusetts case, and is not binding on Colorado courts, but should such an issue arise here, it could be cited as persuasive authority.

However, before you get the idea that freedom of speech lets you say whatever you like about your ex, remember that custody determinations in Colorado consider a number of factors pertaining to the best interest of the child. So even if a court did not prohibit such badmouthing in advance (a “prior restraint”), that does not make it advisable to exercise one’s First Amendment right to free speech by insulting the other.

Disparagement of a parent to the kids would likely be regarded as one of the signs of parental alienation, and if serious or persistent enough, would almost certainly hurt the offending parent in a custody fight. In short: Don’t do it, even if you believe you have a constitutional right to badmouth the other parent.

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