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Do You Need a Non-Disparagement Clause in Your Custody Agreement?

Having to interact with the person you divorced to raise children is a daunting task for many parents. If you are co-parenting children with your former spouse following a divorce, you may want to consider including a non-disparagement clause in your custody agreement, especially if you feel that your ex may try to turn your child against you.

Essentially, a non-disparagement clause prevents the other parent of your child from talking negatively about you in front of your kids. An ever-increasing number of divorced parents choose to include a non-disparagement clause in their custody agreements to improve their relationship with the kids and facilitate healthy communication between the parents.

If you are going through a divorce that involves minor children, you might want to consider drafting a custody agreement that includes a non-disparagement clause and other provisions that can protect you and your child’s best interests.

Speak with a Temple divorce lawyer to discuss your particular situation and determine whether or not you can benefit from a non-disparagement clause in your custody agreement.

What is a Non-Disparagement Clause?

A non-disparagement clause in child custody agreements prohibits both parents from speaking negatively about one another in front of the kids. In some agreements, non-disparagement clauses are written in a way to prohibit parents and members of their households from saying anything negative about the other parent.

A non-disparagement clause puts restrictions on what parents can say about the other parent when speaking to the children or third parties in front of the kids. It is advisable to consult with a divorce attorney to draft an enforceable custody agreement with a properly written non-disparagement clause.

When Do You Need a Non-Disparagement Clause?

Whether or not you need a non-disparagement clause in your child custody agreement depends on your conservatorship (custody) rights and the possession and access to your children. Texas law recognizes two categories of child custody rights:

  1. Conservatorship

  2. Possession and access

The word “conservatorship” refers to the parent’s rights and duties to make decisions about the child’s education, healthcare, religion, and others. Conservatorship can be broken down into two types:

  • Sole managing conservatorship when only one parent has the authority to make major decisions about the child; and

  • Joint managing conservatorship when both parents can make decisions jointly.

Possession and access, on the other hand, refer to the parent’s visitation rights. Divorced parents can choose between standard and extended standard possession and access schedules. However, Texas law also allows parents to create a unique schedule that fits their particular needs and circumstances. Either way, the schedule and custody order must be based on the child’s best interests, which is the primary consideration of Texas courts when issuing custody orders (Texas Family Code § 153.002).

A non-disparagement clause may be beneficial when both parents share visitation rights to ensure that neither parent is speaking negatively about the other parent in front of the kids.

Can a Non-Disparagement Clause Help in Your Custody Case?

Non-disparagement clauses are becoming more popular in child custody cases across Texas and other states. It might be worth considering a non-disparagement clause to protect a child’s relationship with both parents.

While the clause may be effective in preventing all negative statements, including subtle ones, about the other parent, a parent may think twice before saying bad things about their former spouse in front of their children.

Disparagement is a serious issue in child custody battles that may amount to custodial interference. Speaking negatively about the other parent in front of the kids can create distrust between the parents and make it difficult to co-parent effectively. A non-disparagement clause may also protect from parental alienation and prevent the kids from having to take sides.

Can You Enforce a Non-Disparagement Clause in a Custody Agreement?

While properly written non-disparagement clauses in custody agreements are legally binding, it can be very difficult to enforce them when a parent breaches the clause. In many cases, allegations that a parent violated a non-disparagement clause lead to he-said-she-said situations where it is practically impossible to determine who is right.

Although you can go to court to hold the other parent of your child responsible for violating a non-disparagement clause in your custody agreement, it is unlikely that the judge will take away the non-compliant parent’s visitation rights or impose any serious penalties, especially if there is not sufficient evidence to prove the breach.

However, if there is documented evidence of disparagement while a child custody case is ongoing, proving that the other parent talks negatively about their ex-spouse may result in less parenting time being awarded to the disparaging parent.

If you believe that the other parent of your child violated the non-disparagement clause in your custody agreement, it is essential to work with an experienced attorney to ensure that the other parent is held responsible for their behavior.

Other Types of Child Custody Violations

A breach of a non-disparagement clause is not the only type of violation of a child custody agreement. Other types of violations of a child visitation order include:

  • Failure to show up for visitation on time

  • Refusing the other parent access to the child

  • Lying that the child does not want to see the parent

  • Relocating to another city, state, or country without seeking the court’s permission

  • Withholding visitation due to the other parent’s failure to pay child support

  • Sending third parties to pick up and drop off the child

  • Interfering with the other parent’s visitation

If your former spouse violated a non-disparagement clause or any other provisions in your child custody or visitation agreement, do not hesitate to speak with a knowledgeable attorney.

Get a Free Consultation with a Temple Divorce Attorney

If your divorce case is underway, it is critical to draft an effective and legally binding custody agreement that works for everyone involved: you, your former spouse, and your children. Our attorneys at The Law Office of Brett H. Pritchard can help you create a child custody agreement and protect your rights during your divorce case. Call (254) 220-4225 for a case evaluation.

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