What restrictions are permitted upon what the other parent says to the child(ren)?
A very common inclusion in a custody order is what is referred to as a “non-disparagement clause.” These clauses restrain either parent from making disparaging remarks about the other parent in front of or to the child. Non-disparagement clauses are permitted because there is a compelling State interest in protecting the best interests of the children within that state. However, this compelling State interest is not absolute.
In a recent Indiana Court of Appeals case, a non-disparagement clause prohibited either parent from disparaging the other parent in front of “anyone,” whether in the presence of the child or not. The Court of Appeals found the portion of the non-disparagement clause which prohibited disparaging remarks in the presence of the child should be upheld, but the portion prohibiting disparagement in front of “friends, family members, doctors, teachers, associated parties, co-workers, employers, the parenting coordinator, media, the press, or anyone” should be stricken. Israel v. Israel (189 N.E.3d 170, Ind. Ct. App. 2022).
In another recent Indiana Court of Appeals case, a mother was awarded sole legal custody of her child based on a change in circumstances with respect to religion. Specifically, the trial court found the child had made an independent and well-reasoned decision about her faith and found an award of sole legal custody to mother would allow the child to pursue and express her faith. The trial court further ordered Father was not permitted to discuss religion with the child. Father argued his First Amendment rights were violated by the trial court’s order. The Court of Appeals agreed and found the trial court’s order was an impermissible restriction on his freedom of speech.
These cases demonstrate the State’s compelling interest in the best interests of the child(ren) is not limitless. Restrictions on free speech still must be appropriately tailored to a compelling State interest. A restriction to free speech must not be overbroad.
If you have questions or concerns about restrictions on the freedom of speech within the context of a divorce or paternity action, contact our office and ask for a consultation with Attorney Abby Schneller.