Under Section 36-6-101(a)(3) of the Tennessee Code, court orders establishing child custody must usually include a list of rights each non-custodial parent has with respect to their children. One of those rights is the right to be free of derogatory remarks made by the other parent to the child. Derogatory remarks about the non-custodial parent's family are also prohibited. Thus, the General Assembly has put in place a law that creates a prior restraint on free speech, the rationale being children require this protection to minimize the likely damage already caused by the divorce itself.
This right, and the corresponding duty that falls on the other parent, is quite real as one parent found out in the case of Nichols v. Crockett, 2017 WL 4051083 (Tenn. Ct. App., Sept. 13, 2017). In Nichols, the mother was accused of making several negative remarks about the father and his family. Some of those remarks included assertions father's mother was a "drunk," his brother was not intelligent and father had been brainwashing the children. Unfortunately for the mother, after lying in a deposition under oath about some of these comments, she was confronted with an audio recording of her making those comments and had to change her testimony.
The father filed a Motion for criminal contempt with the court and asked the court to punish mother up to 10 days for each violation. The trial court found her guilty of two counts of contempt and sentenced her to 20 days in jail with all but 2 days suspended if she agreed to go to counseling. The mother was also ordered to pay the father's attorney's fees.
The contempt ruling was appealed to the Court of Appeals. The mother alleged she was not given proper notice about the criminal offenses she was accused of, there was insufficient evidence to convict her and it was improper for the trial court to award attorney's fees. The convictions were confirmed. However, the Court of Appeals agreed the criminal contempt statute does not provide for the award of attorney's fees and reversed this portion of the lower court's judgment.