By Robert Kornitzer, Esq.
The explosion of the numerous forms of social media has in many ways created a potentially fundamental alteration of the way in which family law litigation is conducted. I will be addressing social media issues in future blogs as well as in this blog as this recent phenomenon (who ever heard of Facebook seven years ago?) has had a profound impact on the way that issues like custody and even financial issues will be addressed. I will offer an example in this blog of the impact of social media with possible ramifications and will further develop the potential opportunities and dangers to litigants in future blogs and articles. My example of what we see is based on an actual incident that I have witnessed. The details here are not important but the broader issues raised are very significant.
We can start with Facebook and stream of consciousness allegations made by a parent in a custody matter. This particular matter was a bitterly-contested custody dispute that extended many years after the divorce and the original custody determination. The former wife (we will call her “Sally”) made the allegation in her court documents that her former husband (we will call him “George”) had recently attempted to burn her house down by setting fire to her porch. She was obviously attempting to raise to the court concerns over George’s mental stability.
In addition, Sally was simultaneously posting entries on Facebook as to her beliefs of George’s alleged arson and her fears of him. Multiple posting by Sally and her “friends” on Facebook ensued, with many postings, decrying the alleged mental instability of George. These postings were viewed by George’s personal acquaintances, business referral sources and even the parties’ daughter, who was a “friend” of Sally’s on Facebook. George finally learned about this from a “friend” who advised him of the exchange.
A copy of the postings were forwarded to George, which George read with disgust, knowing that the allegations were untrue and realizing that his reputation was being sullied with him powerless to prevent it. However, George was even more astounded when he read the final postings that contained Sally’s admission that she was wrong; that the fire was as a result of a frayed electrical cord. The court eventually learned of the misrepresentation. Sally never issued an apology to George, either personally or on Facebook.
Look at all the possible issues that were created by Sally’s postings. She disseminated false allegations to possibly hundreds of people, many of who know both parents. Does George have a possible tort action against Sally? Sally may have admitted to falsely certifying to the court serious allegations about George affecting perceptions about him. Was Sally attempting to alienate the child against George, knowing the child would be reading her posts and her other friends’ posts?
It is clear that use, or more accurately, misuse of a social media can have significant impact on a custody matter. This theme will continue to be developed in future entries.