Nondisparagement Clauses in Maryland/D.C. Child Custody Orders: What Are They and Are They Legal?

Close up lonely little girl hugging toy, sitting at home alone, upset unhappy child waiting for parents, thinking about problems, bad relationship in family, psychological trauma

Nondisparagement clauses can also be called “no-badmouthing-the-other-parent” clauses. There was a time when Maryland and District of Columbia child custody judges routinely included nondisparagement clauses in their final child custody Orders. The idea was to compel parents to be “nice” to each other when dealing with their child (or children). In turn, compelling the parents to “be nice” was thought to be necessary to ensure that the child (or children) would not be artificially alienated from the love of one parent by the “poisonous” behavior/talk of the other parent. 

If you have questions related to child custody, the Maryland and D.C. divorce attorneys at The Law Offices of Thomas Stahl are here for you and ready to help. In the remainder of this article, we look in more detail at nondisparagement clauses. 

Experience has certainly shown that child custody and visitation arrangements can be emotionally charged over time, even if the spouses were mostly peaceful and calm when they obtained their divorce. But, over time, family dynamics have a way of becoming stressful. If one parent starts to have trouble paying the child support, that can cause anger, which can come out as bad-mouthing the other parent. 

Visitation dynamics can also become emotional as one parent becomes the “fun parent” while the other is the “dull” one and the disciplinarian. New romantic partners can lead to new, unexpected jealousies, which can result in bad-mouthing. Even the behavior of the children can be the cause of bad-mouthing, as one child might angrily shout: “I want to go live with [Dad or Mom].” So, there are ample good reasons to think that a nondisparagement clause in a child custody Order is positive for both parents and children.

An example of a child custody nondisparagement clause might look something like this (in a circumstance where joint custody or visitation rights are ordered):

“NONDISPARAGEMENT: Neither parent shall, by action or word, demean or disparage the other parent to the children — nor permit any third party to do so when within hearing range of the child. Neither parent shall post any comments, solicitations, references, or other information that is disparaging to the other parent on social media, which might be accessed by the children. Neither parent shall attempt to influence negatively or unreasonably criticize, to the children, the children’s activities during the other parent’s time.”

There are many possible variations on these types of clauses. Many include admonitions against disparaging the other parent’s romantic partners, immediate family, and household members.

In terms of enforcement, because this type of clause is included in the court’s Order, the court is entitled to enforce the Order. A court’s Order has the legal effect of mandating behavior by the person/persons to which the Order is directed. If violated, one parent could ask the Maryland/D.C. divorce court to hold the offending parent in contempt of court. The ultimate sanction in a contempt proceeding is placing the offending parent in jail.

It seems doubtful that these types of nondisparagement clauses are legal without the agreement and consent of the parents involved. The reason involves the First Amendment’s guarantee of freedom of speech. At least one court has held that nondisparagement clauses in a court’s Order are a prior restraint on free speech, which are particularly forbidden by the First Amendment. Since that decision, Maryland divorce courts have been advised not to add such clauses in a final child custody Order without the consent of the parents.

Maryland And D.C. Family Law Attorneys

Contact the seasoned and experienced Maryland and D.C. family law lawyers at The Law Offices of Thomas Stahl for more information. We have the skills and expertise you need. We have proven experience with family law for Maryland and the District of Columbia. Schedule a consultation today or call us at (410) 696-4326 or (202) 964-7280. We have offices in Columbia, MD, and Washington, DC.

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