Just about every county likes to attach “guidelines” to child custody orders and those guidelines almost universally contain a non-disparagement clause proscribing use of language that demeans the other parent in the presence of the children. When viewed from the perspective of the children, the clauses are defensible. Any mental health professional will tell you that when parents decide to exchange verbal blows, the kids suffer trauma. The problem here is constitutional. The 1st Amendment protects just about any speech that is not a threat.

            We saw a variation on this theme in Muir v. Gross, a non-precedential case that was issued on April 14 by the Superior Court. The parties have two children, one of whom is a minor and subject to a custody order in York County. Along the way, the Court insisted that communications regarding the children use a proprietary software program called “Our Family Wizard.” The Wizard is essentially a private website intended to keep both parents on the same track when it comes to any events or conversations related to the child. It keeps a written record of what the parent’s write so that there is hard evidence of what was discussed, agreed or disputed. Thus if the child is invited to a birthday party, one parent can notify the other so that the defense of “You never told me” can be irrefutably rebutted.

            In Muir, the parents had a penchant to go off script and torment each other on subjects that had little or nothing to do with the needs/schedule of the kids. So, the Court put in its order that the Wizard was not a place for any communication except those related to custody. Mom filed a contempt petition in August 2022 asserting violation of the order because Father had used insulting language in the Wizard. The appellate decision does not provide detail but acknowledges that Mom might also have stepped outside the boundaries in some of her communications. Again, no detail. But the Court found that Father was in contempt because he violated the non-disparagement clause of the order.

            A second count asserted that Father provided the school with a health record in which he states that Mother was found to have “abused” a sibling of the child. Mother categorically denied any such finding and it would appear her denial was credited by the Court. The publication of the “abuse” allegation to the school was deemed a contempt of the custody order as well. The reasoning was that to make a false statement to an authority (the school) concerning another child was contempt. No specific reference was made to what part of the Court’s order barred such a statement.

            Mother finally concluded her petition with a request for the ubiquitous “any other relief deemed appropriate.” Ironically, Father had filed his own counterclaim in which he had requested relief of various sorts including an award of counsel fees under 23 Pa.C.S. 5339. When the court took up the matter of counsel fees against Father, there was an objection that no request had been pled by Mother. From the opinion on appeal it appears that the trial court determined that if either party requests attorneys fees for obdurate and vexatious conduct, any party can secure such an award. Father was directed to pay $1,417.

            The Superior Court found no abuse of discretion in any of this and affirmed in a nine page opinion that does not seem to grapple with the 1st, 5th and 14th amendment issues.

            Massachusetts recently addressed this topic in a 2020 case Shak v. Shak, 484 Mass. 658 (May 7, 2020). In a direct appeal to the Supreme Judicial Court, that court held that while state have a compelling interest in protecting children, that does not mitigate the protections of the 1st Amendment. In that case a father had taken to social media to disparage a young child’s  other and then circulated the posts to members of their religious community. Father asserted these communications were protected and after review of the U.S. Supreme Court case law on the subject the Massachusetts Court agreed with limitations.

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. 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 (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”).

Shak v. Shak 484 Mass. 658 (SJC 2020)

            Contrast this with an “insulting” post on a private website which the child would have no practical ability to access (viz., Family Wizard).

            The second aspect of the Pennsylvania case is equally puzzling. We don’t have the benefit of the order from which the contempt findings were made but it seems unlikely that a Court would try to limit what is sent to a child’s school as part of his/her health records. And assuming that the Father’s report that Mother had been abusive to another child was inaccurate, the conduct may have been defamatory. But in Muir, Father attempted to have a mental health professional testify that the information he provided to the school had merit. The trial court denied that request because it was irrelevant. From what can be gleaned from the opinion, that relevancy objection was sustained because the issue was never adjudicated. Giving Father the benefit of the doubt, all he was doing was putting the school on notice that they should be “aware.” Should that not be a communication worthy of protection? Is it contemptible to present concerns where the subject was never litigated? This writer does not intend to rise in defense of father’s conduct but the fact that he proposed to offer evidence certainly speaks to the possibility that his conduct was in good faith. Contempt is a remedy for orders that are “specific and definite.” East Caln Township v. Carter 269 A.2d 703 (Pa. 1970). The takeaway from the Muir ruling seems to be that concerns about abuse are to be kept private unless there is a final abuse order. That would seem to be contra to protecting the interests of a child. If parents have a domestic abuse incident, is it wrong to notify the school of the incident prior to adjudication of the Protection from Abuse claim?

            Last, we have the issue of whether one party’s filing for counsel fees “opens the door” to all parties to request a counsel fee award without any written notice. This doctrine has crept into the support world where the rules now provide that once one party puts spousal or child support in play, the court can follow the facts and modify support up or down premised upon the information at hand. The 5th Amendment to the U.S. Constitution indicates that property may not be taken without due process. In Muir, Mother filed for contempt. Contempt of custody has specified remedies one of which is an award of counsel fees. 23 Pa.C.S. 5323(g).  An award of counsel fees in custody is governed by 23 Pa.C.S. 5339. In this case Father had no written notice that he might be liable for counsel fees on Mother’s claim.

            Each one of these is an important issue meriting careful analysis of the constitutional principles involved and a balancing of those interests. It could be that both the trial court and the appeals court did the right thing. Alas, this opinion doesn’t tell us of the offending conduct in the case of the Wizard posting nor a reason why due process notice of a counsel fee claim was ignored in a setting where counsel fees are a contempt remedy under the statute.

Muir v. Gross  1492 MDA 2022 (4/14/23)J-A04003-23m – 105499132221044387.pdf (pacourts.us)