The Holidays and Non-Disparagement Clauses
December 1, 2014/by Maurice Robinson
The leaves have begun to change, the biting kiss of fall’s whispering winds are dancing on our cheeks, and your local department store has probably commenced selling decorative holiday wares. The holiday season is most definitely upon us. For most of us, the season will mark a time of celebrating family, of gathering close to loved ones, and regaling cherished memories of past holidays spent together. We will share our hopes and dreams for future days together. This holiday season will mark the passing of traditions to the next generation. Perhaps for a few moments, our family’s past will be celebrated, our present togetherness embraced, and our collective future gleefully hoped for. We will revel in the internal warmth and love we share, while Jack Frost’s cold is nipping at our noses.
For others, the cold felt will not be the nip of old Jack, but the cold reality of their first holiday as a newly separated family. The season will mark a difficult time of adjusting to their new reality and family dynamic. Many will struggle to hold on to as many old traditions as possible, while creating new ones to meet their new circumstances. For some, their once cherished family gathering will now feel like an interrogation of their life, their choices, and, in some cases, a public bashing of the person they once loved.
Most sadly, many children will be unwilling and/or unknowing participants in the public condemnation of your Ex. Family and Friends will ask questions of them or make comments in their presence that will burden them with the responsibility to a) justify how your split holiday family dynamic works; b) defend the absent parent and their parental choices; or c) quietly absorb the present family’s sometimes negative characterization of their other parent.
Disparaging comments are an unfortunate, but all too common, consequence of a divorce or family separation. We have that perceptive mother who always knew your Ex was, “never good for you” and does not mind telling you so now. Or that over-protective father that is out to avenge your honor by telling the world how “terrible of a person” your Ex was. We have those inquisitive aunts and uncles who don’t understand how you “modern families” think you can successfully co-parent while being separated or divorced. Or we have those family members that feel the only way to show their support for you, is by publicly condemning your Ex. And some of us just have nosy relatives that want to ask a million questions about everyone else’s household, so they can have something to talk about.
While our family members may be questioning things or expressing their sentiments out of love or concern, they are not always considering the ramifications it can have on the child. Nor are they considering the impact their opinions may have on the child’s respective relationships with both of their parents. More importantly, our family members may not understand the precarious position their statements could place you and your custody rights in, if you happen to have non-disparagement clause in your divorce or custody agreement.
What is a Non-Disparagement Clause?
When couples divorce or families separate, the Courts are obligated under the law to review issues of custody and visitation under a “Best Interest of the Child” standard. Under that standard, it is a rebuttable presumption that it is always in the best interest of the children involved for parents to refrain from speaking ill of one another. The Courts believe that refraining from degrading the other parent promotes the children having a healthy and supported relationship with both parents. Maintaining strong parental relationships on an ongoing basis, whenever healthy and feasible, is one of the aims of most Courts and well negotiated custody/visitation agreements. The Court believes that publicly eroding the character of or highlighting character flaws of the other parent in front of the child can cause mental and emotional damage to the child and their relationships with their parents. One of the ways in which the Court and good mediators guard against this type of behavior is by exploring the inclusion of a non-disparagement clause in your decree or agreement.
A non-disparagement clause is a provision in a contract or settlement agreement requiring one or more parties to the agreement not to make negative statements about the other(s). A non-disparagement clause is often included in a settlement agreement that resolves a dispute. In the family law context, these provisions often restrict the parties from making disparaging remarks about the other parent to or in front of their children. Some well negotiated agreements will also limit a parents’ ability to make disparaging remarks about the other parent to anyone in general. These provisions essentially state that the neither parent of the children will make disparaging remarks about the other. On occasion, more specific terms of the parties’ agreement will fully identify to whom disparaging remarks cannot be made. Parties have even gone as far as to require parents to affirmatively remove children from situations in which the other parent is negatively being discussed by any individual.
Enforcing Non-Disparagement in Your Life
Legal Enforcement: Once a Court action has been commenced or the family has engaged in some form of Alternative Dispute Resolution, when a parent bad-mouths the other in front of the children, the legal system will intervene to prevent this from reoccurring. The way the Court intervenes is typically circumstantially based on the type of behavior/comments that are occurring and whether or not a parent has been found in violation of a non-disparagement clause that has been incorporated into a stipulation or settlement agreement. Repercussions range from as minor as a stern talking to in Court to more severe punishments like the disparaging parent being held in contempt of Court or possibly losing primary custody or visitation time.
While non-disparagement clauses are generally thought of to be easy add-ons to any agreement or decree, the scope and enforcement often times prove to be difficult. Legal enforcement of a non-disparagement clause requires an affirmative showing that the other party made the alleged disparaging remarks. Although the digital age of Facebook, Twitter, and communicating through text has made legal enforcement easier, proving someone said something can be a difficult and expensive process. Additionally, the real vile and most heinous breaches of the agreement are almost always verbal and usually done by people who are not even parties to the agreement.
Social Enforcement: Again, non-disparagement clauses are often only an agreement between two parents. They are not an agreement by all the members of the two families. So while, you and your Ex have a written agreement not to engage in the detrimental behavior of tearing each other down, especially in front of the children; Mom, Dad, brother, sister, aunt, uncle, cousin, friend and new lovers do not. While we can control and agree on our own behavior as parents; we cannot negotiate or restrict the behavior of other adults not party to our agreement. Essentially then, you are probably thinking, “How do I control what my family says about my Ex around my children?” So what do you do?
The unfortunate truth is that you can only control your thoughts and what you say. Everyone will have their opinion, and some will exercise their rights to express that opinion as they see fit. As parents, we may also be thinking, “they have a right to their opinion and, well, their opinion is true!” Truth, however, is not a defense to a violation of a non-disparagement clause. Even if the disparaging remark about the opposing party is a true statement, the disparaging party can still be found in contempt or in breach of the agreement.
As concerned parents, you are not without recourse. While you cannot control what your family says, you can and should control what you and your children are in earshot of hearing and what type of environment you and your children remain in. If you find yourself at a family gathering this holiday season and the conversation turns to a discussion of your recent Ex, here is a list of things you should do to reduce the chances of any parental bashing and limit a child’s exposure:
Ask the children to leave the room:
Growing up I often heard the phrase, “grown folks are talking.” This was a clear sign from my parent that it was time for me to leave the room or go play with the other kids; not listen to what “grown folks” were discussing. As the parent, you are responsible for your children. You are in control of who they see, where they go, and what they are allowed to hear. Much like television and radio, if you believe your children are exposed to something you do not think is beneficial and/or positive, it is your role as parent to stop them from seeing and/or listening to it. One of the easiest ways to accomplish this is to ask the children to leave the room.
It is crucial that if you use this method, you ensure the children have actually left the room or cannot still hear you. To children of a certain age, telling them to leave the room may be a sign that its juicy gossip time, and may be an incentive for them to want to lurk around the corner and grab an ear full or two.
Ask the family member to refrain from discussing your Ex while the children are around:
Because it’s not always possible to have your children leave the room, you can always ask your friends and family members to refrain from discussing your Ex while your children are around. Again, you cannot control what other people say, but you can certainly inform them of how you feel about what they are saying. Tell your friends and family members that the discussion of your Ex is not an appropriate conversation to have around your children. Many times our friends and family are so caught up in showing their support for us; they have not paused to consider how their comments may negatively impact the child. If you quickly and directly approach the situation by explaining to your family and friends that their comments could negatively impact your children and/or custody of your children, then many times the conversation will cease or quickly shift to a new topic.
If you are truly worried about having this conversation while at the event, you can also contact the host before and explain your request. Some people do not feel they can delicately handle the situation on the spot, so having a conversation in advance allows to plan out your thoughts and discuss your request before the event. This also allows you to have an ally who can help change the subject, remind people to be kind, or shepherd you away if things get really tense.
Remind your relatives and friends that while “Avery” is no longer your partner, he/she is still your children’s parent:
If your family and friends still aren’t getting the picture, simply remind them that they are speaking ill of someone’s mother or father. We all take it personally when someone dares comment about our own parents. This should resonate with your family and friends. While it is true that “Avery” may have been a terrible spouse, it does not automatically mean “Avery” is also therefore a terrible parent. Spouse and parent are two distinct roles that are often separate and apart from each other. As your children’s voice, you can explain that openly disrespecting a child’s mother or father in their presence is not very nice, nor is it adult-like behavior.
You can also remind your family and friends that as parents, we are the first models of manhood and womanhood for our children. Children learn gender roles, spousal roles, and parental roles by imitation, modeling, and through identification with both of their parents. They adopt aspects of mannerisms, thoughts, feelings, and value system from both parents. From the models and perceptions we present, children begin to develop and internalize what they see themselves as through identification with those attributes they see in us. Undermining a parent’s adequacy could sabotage our children’s sense of competence and confidence. When a parent depreciates some aspect of their Ex, the children may feel similarly devalued because he/she is like that reviled parent. Famous life coach, Iyanla Vanzant, says: “…When you tell a child, disparaging things about their parent, they will begin to think these things about themselves… Simply by virtue of the nature of human connection, he [the child] will begin to believe those things about himself.”
Remind yourself that it’s alright to leave:
If your friends and family are truly not willing to respect your wishes and continue to engage in negative discussions about your Ex, you can always remove yourself and your children from the situation. Although it may seem drastic, you are responsible for the emotional health and well-being of your children. Allowing your children to remain or see you engage with people who are bashing their mother or father is a form of accepting and endorsing that behavior. Remember, you wouldn’t want someone from your Ex’s family speaking down about you in front of your children, so don’t allow members of your family to do it to your Ex.
At the end of the day, divorcing or separating a family is never an easy thing. Your thoughts and impressions of your Ex may shift and evolve at a rapid pace during the process. The holidays may stir up a range of feelings and emotions, and may prove the perfect opportunity for you to have a cathartic venting process while surrounded by those you love.
In doing so, it’s important that we don’t unconsciously force our children to feel the need to be for or against either of their parents or, for their relationships to be the unintended collateral damage of our need to release and relate to others. We must protect our children, and most importantly, their right to form their own independent opinions about the type of people their parents are through their own experience. After all, if your Ex isn’t really that great of a person, your children won’t need any help figuring that out on their own. They are more much more perceptive than you know.
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Maurice Q. Robinson, Esq., is an attorney, mediator, and professor. Learn more