Delaware Court Refuses to Ban Father’s Social-Media Posts About “any Family Court Litigation, [Mother], and Their Child”

From Delaware Family Court Judge Eliza Hirst’s order in M— R— v. C— H—, decided Mar. 4 but just posted on Westlaw:

On August 18, 2025, the parties entered into a stipulated custody agreement wherein they shared joint legal custody, Mother had primary residential placement of the child, and Father had weekly contact with N—. On October 17, 2025, Mother sought and secured an emergency ex parte Protection from Abuse (“PFA”) order against Father. The order directed Father not to contact Mother, approach her, or otherwise “threaten, molest, attack, harass[,] or commit any other act of abuse against” her or N— . It was initially set to expire on November 17, 2025, but it was later extended to January 14, 2026. On December 16, 2025, Mother filed a motion seeking to obtain certain therapy records. Over the next two days, Father secured a lawyer, responded to that motion, moved for interim relief, sought his own PFA, and filed the present custody-modification petition.

On December 19, 2025, with the ex parte PFA in effect and all those petitions and motions pending, Father posted the single video specifically identified in Mother’s Motion to Restrict Public Postings. The video showed N— walking with Father’s help (though only his legs and arms were visible), and it bore the caption, “Thx for joining. If you have any legal advice for dealing with manipulative / emotional abusers please share I’d really appreciate it.”

The parties both appeared on January 14, 2026, for the scheduled trial on their PFA cross-petitions, but Father ultimately agreed to dismiss his petition and sign a consent order in Mother’s favor. The consent order proscribed precisely the same conduct as the ex parte, except that Father was permitted to communicate with Mother on Our Family Wizard about N—‘s well-being.

About two weeks later, after Mother found the video now at issue, she filed three motions with nearly identical allegations: (1) a motion to hold Father in contempt of the ex parte PFA, (2) a motion to extend the consent PFA and modify it to explicitly prohibit social-media posts about “any Family Court litigation, Petition[er,] and their child in common,” and (3) the present Motion to Restrict Public Postings….

In custody matters, this Court has long exercised the power to order parents not to make disparaging remarks about each other in front of their children, and not to allow others to do so, either. Derogatory remarks can be and often are contrary to a child’s best interests. Because protecting children’s interests is a legitimate and significant (or even compelling) state interest, it is fairly well established—though not entirely uncontroversial—that an order to refrain from making such remarks in the presence of such children can survive First Amendment scrutiny.

Similarly, a finding of domestic violence may justify enjoining speech that takes the form of harassment or threats. State law broadly authorizes the Court to restrain an abuser from “contacting or attempting to contact” his or her victim or committing domestic violence, which includes any “course of alarming or distressing conduct.” The Court may further grant “any other reasonable relief necessary or appropriate to prevent or reduce the likelihood of future domestic violence.” A court does not violate the First Amendment in ordering a party to desist from abuse, even when that abuse takes the form of speech. Because protecting victims of abuse is a powerful state interest, narrowly tailored injunctions designed to prevent abusive conduct are constitutionally appropriate….

The … question now before the Court is whether enjoining Father’s social-media use is justifiable as an interim custody order to preserve “the stability and best interests of [N—]” during the litigation. This Court clearly has authority to enter such temporary orders. The difficulty for Mother, however, is this: without alleging any facts demonstrating harm to N—, she nevertheless seeks a sweeping injunction far broader than those often found appropriate in similar cases. At the same time, she vaguely alleges reputational and emotional harm, appearing to gesture at a tort cause of action that cannot be heard in this Court—and that would not merit an injunction in any event. In short, she fails to explain why the Court should grant relief, let alone whether it may constitutionally do so.

An injunction is a form of “forward-looking relief” that is warranted only when there is “a reasonable apprehension of a future wrong”—not just harmful conduct in the past. Mother objects only to a single video posted in December, and her evidence of future harm to N— is limited to an unsupported contention that “[t]he posts [sic] will remain on Instagram, social media[,] and/or the Internet indefinitely and could impact the Child’s life indefinitely and harm the mother-child relationship.” N— is not yet two years old and has no access to social media. Moreover, the video does not name Mother or specifically disparage her, and it may well be removed long before N— sees it. Mother’s sheer speculation about possible future harm cannot support the sweeping interim injunction she seeks.

The absence of an imminent, significant future wrong is also a fatal constitutional defect. As Father observes, Mother is asking the Court to impose a prior restraint upon his speech. Both the First Amendment and the Delaware Constitution generally bar such speech-limiting injunctions. “A prior restraint occurs when government suppresses speech based on its content before the speech is uttered.”

Here, Mother seeks to have the Court enjoin Father from making any social media posts referencing her, N—, or (any) Family Court litigation. Some authority suggests that, in abuse cases, an injunction against speaking about a victim online may be a constitutionally tolerable contact-based restriction, necessary to prevent an abuser from using social media “to exercise control over the victim in public” and continue the cycle of abuse. However, that authority is not applicable here. Before the Court is a custody matter, not a PFA case, and there has been no judicial finding of abuse. Moreover, the provisions related to N— and to Family Court litigation are unambiguously based on content.

As a content-based prior restraint, Mother’s proposed order faces a “heavy presumption against its constitutional validity” even if it is “not unconstitutional per se.” A valid restraint must address a harm that is both “grave” and “all but certain” to occur, and that cannot be prevented by less restrictive means. Arguing in front of a child is not preferable and may be harmful, but “general concern for the best interests of the child[ ] will not necessarily allow a court to broadly restrain a parent from making disparaging comments about the other to third parties.”

In evaluating whether the harm is sufficiently grave and certain to merit such a restraint, courts have consistently refused to issue injunctions like the one Mother seeks. One Connecticut judge concluded that broad restrictions on parents’ online speech violate the Constitution: only orders “narrowly tailored to prevent disparaging comments between the parents in front of the children, [and thus] … to protect the interests of the children, [are] permissible.” The Massachusetts Supreme Judicial Court went further, finding that court-imposed non-disparagement orders are constitutional only in “extreme circumstances” where there is a showing of “grave, imminent harm” to a child. And other courts limit these prohibitions to defamation, true threats, or other categories of speech entirely unprotected by the First Amendment.

Like the other jurisdictions, the Court here will not issue an injunction because Mother’s speculation falls well short of showing grave harm to N— that is near-certain to occur (based on the single post she identifies), and is simply not enough under any standard. In addition, Mother’s proposed injunction is enormously overbroad. She seeks to prohibit Father from using social media to express anything about any Family Court matter, about Mother, or about N—. Taken literally, that proposal sweeps far beyond what might be necessary to protect N—‘s best interests. It forbids Father from writing about how much he loves N—. It forbids him from writing about how proud he is of her. And it forbids him from criticizing or discussing proceedings in Family Court entirely unrelated to this one. Consequently, granting Mother’s motion would run well afoul of constitutional limits….

Because Mother fails to show that Father’s possible future use of social media threatens harm to N—‘s best interests, or that her requested injunction is necessary and narrowly tailored to prevent such harm, her motion must be DENIED. To grant it would be to violate Father’s rights under both the First Amendment and the Delaware Constitution. However, the Court cautions the parties that feckless, impulsive, or spiteful public missives by either parent, though constitutionally protected, will undermine the opportunity for healthy, productive co-parenting. As part of determining N—‘s best interests under 13 Del. C. § 722, the Court will consider the extent to which each parent has facilitated—or sabotaged—the beneficial involvement of the other in N—‘s life. Evidence of disparagement on social media or elsewhere will be weighed appropriately alongside all other evidence relevant to N—‘s best interests….