There is never a shortage of new and interesting stories involving social media that impact upon our world of family law. We have previously blogged about what NOT to do online, because there may be a spouse ready and willing to use such online postings, pictures and the like against you in your divorce proceeding.
Apparently the Mom in the case of Melody M. did not read our blog posts. In a decision from a New York appellate court that garnered enough attention that I first read about it in the New York Daily News, Mom lost legal custody of the children for being mean to her oldest child on Facebook.
The basic facts were relatively straightforward. The parties entered into a separation agreement in 2006 providing for joint custody of their three children, with "alternating physical placement." In 2009, the parties stipulated to continuing joint legal custody, with Dad having primary physicla custody and Mom having scheduled parenting time for an evening each week and on weekends during the school year. In 2010, Mom commenced the first proceeding to increase her parenting time. Dad opposed the requested modification, and, among other things, sought his own form of modification by requesting that he be granted sole legal custody of the children.
In granting Dad’s request for sole legal custody, the Family Court found a change in circumstances based on what it deemed was a "sufficient deterioration in the parties’ relationship . . ." In determining what legal custody situation would be in the best interests of the children, the Family Court noted that Mom had engaged in a "pattern of inappropriate behvavior" that had an impact on the oldest child, who happened to also have mental health issues and received counseling. Aside from not participating in the counseling, failing to heed the counselor’s recommendations, and often asking Dad to pick up oldest son during her parenting time because she had difficulty in dealing with the child’s behavior, Mom also testified to swearing and yelling at the child, as well as using "physical means" towards him.
It is here when the case then took a turn towards the more unusual, as the Family Court also noted that Mom utilized Facebook "to insult and demean the child, who was then 10 years old, by, among other things, calling him an ‘a-shole’." Even worse, Mom actually testified "without remorse" that she called her son that expletive on Facebook because that is what "[h]e is" and thought it important for her Facebook friends to know. Encapsulating Mom’s testimony, the Court concluded that "charitably stated," Mom’s testimony "reflected a lack of insight as to the nature of her conduct toward her oldest child."
The Court even went so far as to impose an Order of Protection against Mom, precluding Mom from posting anything to or about her children.on any social media site, even of a positive nature.
While this case was out of New York, it could certainly apply in New Jersey as well. Mom’s conduct here was abhorrent, especially considering the age and mental troubles of the child to whom her postings were directed. It is a simple reminder, though, that anything you do, say, or think online can be used against you in a family law proceeding, whether it be divorce, custody, domestic violence, and the like.
Robert Epstein is an associate in Fox Rothschild LLP’s Family Law Practice Group. Robert practices in the firm’s Roseland, New Jersey office and can be reached at (973) 994-7526, or firstname.lastname@example.org.