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Parents: Is Your Freedom of Speech Worth the Welfare of Your Child?

The Massachusetts Supreme Judicial Court issued a troubling decision last week, in which it ruled that an order preventing a parent from posting about his children on social media violated the father’s constitutional right to freedom of speech. Even if the court entered the order in question to protect the child, this decision will no doubt reverberate throughout the country, and be the subject of similar cases in which parents in the midst of nasty custody battles seek to wage their wars publicly.

In the case in question (Shak v. Shak), the court entered an order, which is common in any custody matter, which prohibited the father from posting disparaging remarks about the mother and the ongoing litigation on social media. After a second court hearing, the Court further refined the order to more narrowly define what was not allowed. The court included that social media postings could not contain comments about the mother’s morality or parenting ability of any minor children. Also, the Court prohibited the posting of a litany of curse words.

These types of orders are commonplace in family law matters in all states including New Jersey, and in particular, in those cases in which the parties have children in common. It is another tool in a judge’s bag to protect children from the actions of their parents, intentional or not. I have often said that contested family law matters are ones in which good people are acting badly, and oftentimes acting in ways that they later acknowledge were not in their children’s best interests. Unfortunately, the internet and social media keep a never-ending record of these poor decisions, and can bring to a child’s attention things that are better left unsaid to them. Moreover, any special needs, and the parent’s differing views on how to handle those needs, are often at the front and center of custody matters. These are private issues that many parents do not want hundreds of Facebook friends learning about. When a child hears in a schoolyard what parents said about that child or about the child’s other parent, it can lead to heartbreaking consequences.

The parens patriae role of the court is regarded as the legal protector of citizens unable to protect themselves, including children. Courts who have a responsibility first to children freely enter orders which are thought to be in the children’s best interests. These orders are regularly ones in which litigants are prohibited from disparaging the other, or talking about the children on social media.

The Massachusetts court did note that there can be instances in which an order like this can be entered by the Court, but it has to be in situations in which the harm expected from unrestrained speech is grave, and the likelihood that the harm would occur without the prior restraint in place is all but certain. There also must be no alternative, less restrictive means to lessen the harm. Some attorneys have called this ruling a game-changer in Massachusetts.

Massachusetts law is not binding on New Jersey Courts, but there is reason for concern. First, litigants may read about this and take away from the story that these types of actions are permissible. Second, New Jersey and Massachusetts courts often see things similarly. Finally, the issue is one which may now create more issues that litigants have to face in their custody disputes. It will be important to make sure any applications to the Court involving communications about children are carefully crafted to make sure the intended relief is granted.

COPYRIGHT © 2020, STARK & STARKNational Law Review, Volume X, Number 133


About this Author

Jennifer Weisberg Millner, family law attorney, Stark law

Jennifer Weisberg Millner is a Shareholder and member of Stark & Stark’s Family Law & Divorce practice. Ms. Millner concentrates her practice in divorce, custody, adoption, and appeals. She is also certified in collaborative law, a method of dispute resolution in which the parties and their attorneys mutually agree to reach a settlement outside the courtroom without resorting to litigation.

Ms. Millner is deeply familiar with the complex legal, and emotional, challenges that arise when families must turn to...