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Why You Need a Non-Disparagement Clause

The central inquiry in child custody matters is "what is in the best interest of the child?" Courts use this as the primary basis for making decisions about custody when parents cannot come to an agreement on their own. Parents who are negotiating an agreement on their own should use the best interest of their child as the starting point for their negotiation, also.

It sounds so easy. So why does the process so often go wrong? Divorce and child custody can be confrontational. Many parents are worried that the failure of the relationship with the other parent will result in the failure of the parent-child relationship, also, and act out in an attempt to avoid the rejection that they believe (often erroneously) is coming. Often, a parent cannot separate the feelings of hurt and rejection they are experiencing from their child's independent experience of the other parent, which may lead to confusing demands and a tendency to overprotect. Frequently, confused parents may engage in a propaganda war, and in so doing, may make their child feel guilty for loving the other parent and wanting to maintain a relationship with both parents. There are many negative aspects to "bad mouthing" the other parent, and virtually no benefits. For all of these reasons, a non-disparagement clause in your child custody agreement is standard in California.

What Is A Non-Disparagement Clause?

A non-disparagement clause states that neither parent will speak negatively about the other parent in front of the kids. The clause also requires the parents to ensure that third parties, such as grandparents, to honor the clause, and places an affirmative duty on a parent to remove the child from the presence of those speaking ill of the other parent. This is important, as no family member or trusted individual should be trying to create a negative perception of one parent.

Keeping Parents On Their Best Behavior: Children Are Not Mini-Adults

It can be tempting for a parent to try and get their child "on their side." There are few things scarier to a parent that the threat of loss of their child's love or presence. Does it matter when what you're saying about your ex is true? Not so much, as it turns out. Children are not mini-adults. They do not process information in the same way adults do, because they are not emotionally and psychologically developed enough to do so. Depending upon your child's developmental stage, your child may think of themselves - simplistically -- as part mom, part dad. When someone disparages either their mom or their dad, the child may very well internalize this as someone criticizing them. Think about the degree of anger you feel toward your spouse...now imagine your child misinterpreting that anger as being directed at them. It is a scary reality that many children of divorce experience on a daily basis.

They may also not know what to do when someone they love very much (the parent who is criticizing) is saying things about another person they love very much (the parent being criticized). Typically, our children love both of their parents and want to please both parents, even if their behavior does not always reflect this. It is easy to see how placing them in the middle of parental conflict can lead to them experiencing intense emotional confusion and even self-hate.

Every child custody arrangement is stressful and emotional, and coming up with the right solution is rarely easy. However, something as simple as a non-disparagement clause can be important for your child's wellbeing. It is important to ask for it, and important (if admittedly very difficult) to follow it. The benefits to your child, however, make it worth the effort.

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Evans Family Law
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