Free speech and child custody laws often mix when courts enter anti-disparagement orders. These orders often prohibit parents from insulting each other in front of the child and on social media. A recent Georgia appellate court attempts to resolve a First Amendment limit on a parent’s speech before it is too late.
The Night the Lights Went Out in Georgia
In the Georgia case, the parents had one child who was born in 2008. In May 2023, they entered into a consent order agreeing joint physical custody. Their agreement also had a non-disparagement clause in which they agreed:
“[n]either Parent nor their relatives shall disparage the other Parent [in] the minor child’s presence”; it did not mention disparagement by social media or other means.”
The father petitioned to modify custody in 2024, seeking sole physical custody, child support, and attorney’s fees. After the temporary hearing, the trial court awarded the father physical custody and ordered the mother to pay child support.
The trial court admonished the mother:
You’re putting your truth out there and saying your truth. Disparagement doesn’t care about the truth. It just means that you’re putting down another parent.” Mother responded, “Yeah.” The court concluded: Things on social media get back to kids. They just do. And I think that we’re all — we’re all cognizant of that in this day and age, but we have to be careful about what we put out there. And if we can’t say anything nice, we just don’t need to say anything at all, and that’s the best rule to live by in terms of this.
In November 2025, the trial court entered a final order directing the mother to “immediately cease all disparagement of [Father] whether via social media or other means.” The final order also adopted and incorporated the parenting plan proposed by Father, which provided that the parties “will not speak badly of each other or the members of the family of the other parent.”
The mother appealed.
Florida Disparagement and Free Speech
I’ve written about free speech in family cases before. Family courts have a lot of power to protect children. The “best interests of the child” test — the standard applied in all Florida child custody disputes between parents — gives family court judges a lot of discretion to ban speech which can harm children.
Florida Statutes themselves provide that a parent’s ability to protect a child by refraining from disparaging comments about the other parent to the child is a factor judges should consider.
In Florida, there is a duty of parents to encourage and nurture the relationship between a child and the other parent. The obligation is met, in part, by refraining from doing anything likely to undermine the other parent’s relationship.
However, courts can go too far. In one case, a family court prohibited a father from posting anything on social media, regardless of what it concerns, and removing all his posts. The appellate court readily concluded that the order was overbroad. Florida law tries to balance the burden placed on the right of free expression essential to the furtherance of the state’s interests in promoting the best interests of children.
Georgia on My Mind
On appeal, the father argued the mother waived her constitutional objections. He pointed out that she had previously agreed to the non-disparagement provision and didn’t object when the trial judge admonished her about making public posts.
The Georgia Court of Appeals disagreed and vacated the restrictions. The injunction on mother’s speech was not entered until the final order. The Mother raised the issue in her application for discretionary review, which was her first opportunity to do so. But the appellate court did not reach the constitutional issue because the child reached 18 years of age during the appeal and it became moot.
While the decision did not prohibit family courts from including non-disparagement clauses in parenting plans, the Georgia case highlights the constitutional protections can be violated by non-disparagement clauses.
The opinion is here.