Social Media in Child Custody Cases

When parents are fighting tooth-and-nail with each other–or with the state–for custody of their children, they leave no stone unturned. And like most other groups in society, parents and kids alike increasingly turn to social media to carry out their relationships and vent their frustrations. It’s not surprising, therefore, to see all the ugliness of child custody fights spilling over into social media, and evidence of those postings starting to find its way into child custody case law.

Parents Behaving Badly Online

In Goedelman v. Wilmont (Ill. App. Nov. 3, 2011), the mother suspected that the father was abusing their son while he was in the father’s custody.  So she took photos of the boy before he left for his father’s and after he returned, in an attempt to document the abuse.  Then she posted some of these pictures on Facebook, along with “expressing her fear of abuse and her overall frustration with the judicial system.”   These photos were later admitted as evidence in court.

The court’s opinion sheds little light on what these photos actually depicted. But the court ultimately awarded sole custody to the father, upholding a determination that the mother “suffers from a delusional disorder which causes her to believe that such abuse is occurring despite a lack of objective evidence found by those who are trained investigators of abuse.”  That leads one to wonder whether the father has a defamation claim based on those Facebook postings.

Elissa N. n/k/a P. v. Ian B. (N.Y. Fam. Ct. Apr. 7, 2011).  Here, a mother used Facebook and a blog on multiple occasions to publicly rail against the father from whom she was separated.  On one occasion, she wrote that the father was “a horrible excuse for a human being.”  On another, she wrote that the father had not looked for a job in two years, owed $6,000 in child support, and wanted her to “support his lazy a**.”  She also posted a photo of her own hand bandaged, after having lost her temper and punched a wall.

These were not the only, or even the most important pieces of evidence in the case.  But they were consistent with the court’s ultimate conclusion that the mother was a “less fit” parent than the father.

Then there’s In re C.C.(Cal. App. Oct. 17. 2011).  Here, the court upheld the state’s removal of a child from both parents. Both were substance abusers who got into physical altercations with each other in front of their son.  The court cited the  father’s Facebook use as evidence against his mental stability and fitness as a parent.   For example, he posted requests to his family and friends to provide negative information about the mother and positive information about him.  He also wrote that the mother was a “mentally challenged, immature, disturbed drug addict with a long history of personal and family mental illness.”  Calling the father’s behavior “bordering on harassment,” the court admonished him not to discuss the case on Facebook.

Sometimes, Facebook Just Ain’t Enough

In re Marriage of Brechwald (Iowa App. Apr. 27, 2011).  In this case, the court awarded sole custody of three girls to their father.  As one of several arguments against his fitness as a parent, the mother pointed to the fact that the father had posted pictures of the girls on his Facebook page, and that he had dated women that he met online.  But the court found both of these facts to be benign, and the mother provided no evidence to the contrary.  (Just imagine what a contrary ruling would have meant for nearly every parent with a Facebook page!  How many of us don’t post pictures of our kids?)

Gillum v. Gillum (Ohio App. May 27, 2011)  involved a father using MySpace postings in an unsuccessful attempt to undermine the mother’s sole custody of their daughters.  First, he pointed to photos that the girls themselves had posted on MySpace, including “pictures of the thirteen-year-old daughter kissing one of her girlfriends on the cheek and pictures of the fifteen-year-old wearing a bikini and cowboy hat at the beach,” along with captions in which the girls described themselves as “hot” and “sexii.”

Second, the father took issue with message that the mother herself had posted in publicly visible MySpace messages and emails to the girls.  These referred to the father and his wife as fat, ugly, Bible-thumpers, manipulative, and other, more colorful descriptions.

The court agreed that “the wisdom of allowing Internet posts of a bikini-clad girl or of young girls kissing is certainly problematic,” but nevertheless refused to agree with the father that they were “sexually exploitive.”  Taking all of this evidence as a whole, the court found it “not so serious or offensive, in itself, as to compel the court to change the custodial parent.

Supervising the Kids Online

In Bemis v. Bemis (Conn. Super. July 12, 2011), one of the complaints raised by the mother was that the father paid too little attention to their 14-year-old daughter’s use of Facebook.  Apparently acknowledging the legitimacy of this concern, the court ordered: “Each parent shall view [Daughter]’s Facebook page once per week. If [Daughter] is unwilling to share 100% access, she shall be denied computer and smart phone access except for use of a computer for schoolwork which shall be supervised.”

And in the Brechwald case cited above, the court observed in passing that the girls themselves used Facebook at both parents’ houses.  It did not appear to notice, however, that the youngest girl, at only 11 years old, was not old enough to have a Facebook account.

It shouldn’t be a surprise that all of this nasty behavior has migrated online.  Social networks are truly becoming extensions of our everyday lives, for both good and ill.  For motivated litigants, however, it’s also a trove of evidence to use against an opponent, or a means for throwing mud at the other party.  And few litigants are more motivated than warring exes.