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Lisa Schmidt
What is a non-disparagement clause?

What is a Non-Disparagement Clause?

If you have been listening in on your attorney’s negotiations with your co-parent’s lawyer, you may have heard that the custody order will include a “non-disparagement clause.” Don’t let the fancy name fool you. This provision of your Judgment of Divorce or Order for Custody is designed to protect your children, and your reputation.

Divorces, and other custody actions, involve a lot of negative emotions. There is always a reason you and your ex aren’t together anymore. And it can be tempting to try to sway the children to your side. But what many parents don’t realize is that statements against your ex can actually put your kids in a tough situation: stuck between two parents they love.

That’s where a non-disparagement clause comes in. This part of your order will say something like this:

“Neither parent will, directly or indirectly, influence the child so as to prejudice a child against the other parent. The parents will endeavor to guide the child so as to promote the affectionate relationship between the child and the mother and the child and the father.”

Sounds simple enough, but why would you need that in your order?

Unfortunately, emotions can sometime overwhelm logic. When you are fighting over pick-ups or holiday visitation, it can be easy to call your co-parent an “idiot” or worse. When you do that, you are insulting your children, whether you realize it or not. Remember, you children are as much their father’s or mother’s, as they are yours. So when you insult their parent, you are also insulting half of them as well. When that happens again and again, like in a high-conflict divorce, the children may come to believe it. They will do what they can to please each parent and live up (or down) to their expectations. Bob Livingstone, a psychiatrist and social worker, explains:

“Children are faced with a barrage of words, events and thoughts that they are not prepared to deal with in any healthy way. They want to please each parent, but find it impossible to do so for any extended period of time, so they settle for short-term expediency. In other words, they learn to tell the adults what they think the parents want to hear. Those statements may differ entirely from what the child believes, but in order to avoid extended conflict, the child goes out of her way to avoid it.”

In rare cases, this behavior goes even further, into the realm of parental alienation. The Michigan Court of Appeals describes parental alienation as:

“The process of one parent trying to undermine and destroy to varying degrees the relationship that the child has with the other parent.”

Parental alienation happens when, for any reason, a parent is so angry with the co-parent that he or she can’t imagine the children wanting to spend time with him or her. But this programming of the children causes significant harm to the children, their identities, and their futures.

The non-disparagement clause is designed to protect your children from that harm. While no piece of paper will force your ex to change his or her behavior, the order gives the court the power to protect your children against the negative affects of harmful statements. If your spouse ignores the non-disparagement clause and continues to interfere with your emotional relationship with your children, the court can hold the co-parent in contempt or even use it as proper cause to change the custody arrangement.

No parent would intentionally do harm to his or her children to get back at an ex. But by ignoring non-disparagement language in their Judgment of Divorce or custody order, you or your co-parent could be doing just that. If you believe your children are being harmed by the statements and behavior of your co-parent, contact Family Law Attorney Lisa J. Schmidt to see if your circumstances support a change.

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