Mom Alleged Violation of Anti-disparagement Clause But Child Too Young
Massachusetts child custody case summary on NON-DISPARAGEMENT CLAUSE.
During divorce proceeding, mother filed a complaint for civil contempt alleging father violated the nondisparagement orders. The court declined to find father in contempt, found the orders constituted an unlawful restraint on speech, and issued new nondisparagement orders. Mother appealed. Held: “Assuming for the sake of discussion that the Commonwealth’s interest in protecting a child from such harm is sufficiently weighty to justify a prior restraint in some extreme circumstances, those circumstances do not exist here. No showing was made linking communications by either parent to any grave, imminent harm to the child. The mother presented no evidence that the child has been exposed to, or would even understand, the speech that gave rise to the underlying motion for contempt. As a toddler, the child is too young to be able to either read or to access social media.
The concern about potential harm that could occur if the child were to discover the speech in the future is speculative and cannot justify a prior restraint. See Nebraska Press Ass’n, 427 U.S. at 563, 96 S.Ct. 2791. Significantly, there has been no showing of anything in this particular child’s physical, mental, or emotional state that would make him especially vulnerable to experiencing the type of direct and substantial harm that might require a prior restraint if at any point he were exposed to one parent’s disparaging words toward the other. Cf. Felton v. Felton, 383 Mass. 232, 233-234, 418 N.E.2d 606 (1981), and cases cited (reversing and remanding for further consideration probate judge’s order restricting father’s visitation unless he refrained from instructing children in his religion – “harm to the child … should not be simply assumed or surmised; it must be demonstrated in detail”).”
484 Mass. 658, 144 N.E.3d 274
(Massachusetts Supreme Judicial Court, May 7, 2020)
See original opinion for exact language. Legal citations omitted.
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