You Have the Right to Speak Your Mind About Your Former Spouse, But is it a Good Idea?

This past week the news reported about an ex-husband and father who is appealing a family court’s order which directed him to take his website/blog entitled, off the Internet. The husband/father no doubt said horrible things about his ex-wife and the mother of his children; and there is no question his children are of an age that they could access the website. While most people would probably agree the website is in poor taste and likely not a child-centered act, did he have the constitutional right to make negative comments about his ex-wife on his website/blog?

When free speech can be restricted

In California, it is not uncommon for the family court to issue restraining orders necessary to protect the welfare of the parties’ minor children; this may even include certain restrictions on what the parties can say in the children’s presence.  For example, parents are routinely ordered not to make disparaging comments about each other to the children or in their presence and they are frequently enjoined from discussing their dissolution case in front of the children.  This means the court has the power to restrict speech to promote the welfare of the children.  However, the court must be mindful of the First Amendment constitutional right to free speech.

When free speech cannot be restricted

While the family court routinely restricts speech that is made to the children or within hearing of the children, the constitutional right to free speech allows a parent to speak to others – even negatively – about an ex-spouse.  This means, negative statements can even be published on the Internet.  Once the statements are made, it is a different question whether or not the statements are defamatory and can subject that person to civil liability.

It’s your choice

Even if the statements made to others about an ex-spouse are not defamatory and within one’s right to free speech, the question directly affecting the custody case is whether or not it is a good idea to make them.  The family law courts have great discretion in custody matters and must make custody orders which are in the best interest of the children.  Therefore, someone who takes a stand on constitutional rights – and wins that battle – may lose the custody war through conduct that the court says is not in the best interest of the children.