Nondisparagement: Can the court intervene?

Oftentimes in contentious custody matters, language is sought that neither parent disparage the other to a child or in the presence of a child. A recent Supreme Judicial Court case, Shak v. Shak, decided that, unless the parties voluntarily agree to such nondisparagement language, the Court cannot order nondisparagement unless the harm expected from the disparaging language is grave, the likelihood of the harm occurring without the restriction in place is all but certain, and there are no alternative, less restrictive means to lessen the harm.

However, there are options available if such concerning statements are made to a child or in the presence of a child. Depending upon the nature and severity of the speech, parents who are the target of disparaging speech may have the option of seeking a harassment prevention order pursuant to G. L. c. 258E, or filing an action seeking damages for intentional infliction of emotional distress or defamation.

In addition, Probate and Family Court Judges, who are guided by determining the best interests of the child, can make clear to the parties that their behavior, including any disparaging language, will be factored into any subsequent custody determinations. We strongly caution against any parent making disparaging comments about another parent to or in the presence of their child(ren).

Should you have any questions about what a co-parent is saying about you to your child(ren) or in their presence, please contact one of our seven attorneys at Ryan Faenza Carey.

Scroll to Top