The State of Facebook and Family Law
Four attorneys share anecdotes about Facebook's effect on family law, and round up recent case trends and ethics rules on the topic.
Facebook is ubiquitous now, right? What “You’ve Got Mail!” was to the 90s, “Like” buttons and status updates are to today’s Internet users. And while I was one of the first college students to use Facebook, and I watched it grow from a college kids’ message board to the social network, I knew it had really gone mainstream when a barely literate relative who has trouble operating a flip-phone “liked” one of my photos. If he can figure it out, all lawyers need to be able to do so as well, because Facebook’s ubiquity means it is a primary form of communication—on par with email and postal mail.
Not sold yet? What if I told you that a court had allowed service of process in a divorce case through Facebook? Or that two people recently found themselves in contempt of court for Facebooking a protected party? What if I told you a bunch of cool stories about opposing parties ruining their cases by broadcasting the finer details of their lifestyle to their online friends?
Maybe then you’d add a Facebook warning for your clients, and regular Facebook checks for opposing clients, to your typical case preparation strategy. If not, perhaps an ethics rule requiring familiarity with social media would be enough to get you on the bandwagon—Facebook isn’t new, but an ethical duty to know how to use it certainly would be.
This is a general roundup of the state of Facebook and family law: from cases on the frontier, to stalking opposing clients, to a wave of new ethics rules regarding proficiency with technology.
3 Unusual Court Decisions
Service by Facebook
Which are you more likely to read: a newspaper announcement of a pending lawsuit or a Facebook message sent directly to your actively used account? Early last year, a New York judge allowed a woman who had spent years trying to track down and serve her husband to do so online, reports CNN. The husband had reportedly spent years dodging service and told his wife that he had no permanent address or employer.
Before allowing service via social media, Judge Cooper required the wife to prove that the account belonged to her husband and that it was consistently in use. In his ruling, he called social media the “next frontier” as “forums through which a summons can be delivered.”
Will California judges follow suit? It certainly seems a lot more effective than publishing a notice in a Needles, California newspaper and hoping that the opposing party will see it.
Violating Protective Orders
No contact means no contact, right?
Well, if you ever wondered where the line might be, or need a cautionary tale for clients, two recent cases of passive-aggressive Facebooking led to legal trouble for defendants restricted by protective or restraining orders.
Last August, a Pennsylvania man was arraigned on contempt of court charges for “liking” his ex-girlfriend’s Facebook photos—twenty-two of them, to be exact—while a “protection from abuse” order was in place. According to Ars Technica, Justin Bellanco allegedly told his girlfriend previously that he would “shoot her knee cap to watch her suffer.” The like-binge apparently was enough communication to violate the resulting no-contact order.
And in January, a woman was arraigned in New York for doing something similar: tagging the subject of a protective order in a status message on Facebook, reports Cnet.
Tales from the Trenches
To me, one of the greatest parts about being a lawyer are the war stories: the tales we tell to each other over a scotch that begin with, “You won’t believe how incredibly stupid [opposing party] is!”
These are those tales—times Facebook paid off handsomely in practice:
During a custody case, I did a Google search on the opposing party (the father), which turned up his Facebook page. One of the first “public” pictures that he was tagged in was a picture of him holding a bong with smoke surrounding his head. There were also other adults in the picture holding alcoholic beverages; someone holding drug paraphernalia as well. The most concerning (yet best for our case) part of the picture was that the child was standing slightly behind the father and in the immediate presence of the dad smoking the bong. The child was about 4 years old. The dad was clearly getting high, likely consuming alcohol, and attending an inappropriate party during his custodial time with the child.
Mind you, this case involved serious concerns about the father’s ability to parent and the safety of the child due to the father’s drug and alcohol issues. The court had already made temporary orders that the father was not to be drinking or using illegal substances for at least 12 hours prior to or during custodial visits. The Facebook posting was a slam dunk for supervised visitations for the father at his expense.
The moral of the story: clients should deactivate their Facebook pages while they are going through a divorce or custody case.
One of my most memorable cases involved a father who had requested more parenting time with his young daughters after an income withholding order for child support was issued against him. My client, the mother, was opposed to this because her daughters’ father only spent time with the children when he was sober, which was not often. This guy was not shy about his interest in drugs, money, and women, as his Facebook page was littered with innuendo and references to the above.
Within days of filing his request for order for increased visitation, the father updated his Facebook status with a photo of three neatly cut-up lines of a white powdery substance sitting next to a snifter of some type of amber colored beverage. He captioned the photo, “In this country, you gotta make the money first. Then when you get the money, you get the power. Then when you get the power, then you get the women.” Consequently, the judge was not impressed by the father’s homage to Tony Montana. Upon reviewing the printed-out Facebook posts and photos, the judge denied the father’s request for increased visitation, granted my client’s request for supervised visitation, and ordered him to complete a narcotics and alcohol recovery program before she would consider modifying the parenting schedule.
The take-away? Instruct your clients to live by the age-old adage: to publish is to perish.
Chandra Moss, CFLS
In one case, a husband had heard through the grapevine that his ex-wife was cohabiting and was working, either of which would have been a substantial change of circumstance warranting modification of the current spousal support order. In the ex-wife’s responsive declaration filed (under penalty of perjury) in response to the husband’s request to modify spousal support, she claimed that 1) yes, she lived with the named gentleman, but 2) they were merely roommates and had no romantic relationship.
We did a Facebook search, thinking maybe she had disclosed the relationship on social media. Sure enough, there were a number of posts by the ex-wife, including photos, indicating that the relationship was quite a bit more than just “roommates.” We brought the postings and photos to trial. The trial judge made the specific finding that the ex-wife was, indeed, cohabiting within the meaning of California Family Code §4323 and that she was less than honest.
A couple of years ago, a potential client was in for a consultation on an interstate divorce. We wanted to be first to file and serve, for obvious reasons, so while my colleague talked with the potential client, I pulled up her ex’s Facebook profile, complemented her on her adorable son, and found the new girlfriend’s profile, which stated excitedly that he was coming to California the following week (and could be served with process then).
Do Lawyers Have a Duty to “Facebook Stalk” Opposing Clients?
Is there any other legal practice where the parties’ character is so integral to the outcome? In cases involving children, the standard is “best interests of the child,” a standard that brings each party’s lifestyle into the courtroom.
Two decades ago, you would have to track down witnesses to illicit behavior or hire a private investigator. But in today’s world, people have developed a habit of broadcasting their behavior in status updates, tweets, or Instagram photos and videos—it’s a treasure trove of evidence against uninhibited opposing parties.
How do you access these accounts? We’ve seen people with privacy settings turned off entirely—anyone looking for them can see everything they do. Otherwise, if they are still friends with your client or with your client’s close friends or family members, that might provide access as well.
There’s also the full stalker mode: create a profile of an attractive person who shares a high school or employer with the target. Add the target’s friends. Once a few of them have accepted, the common background and mutual friends is enough social engineering to get most people to accept. Of course, there may be ethical or legal reasons why this may not be kosher—it certainly feels a bit creepy. And try explaining to a judge how you got the evidence—that won’t go over well.
But the bottom line is this: you need to be proficient with Facebook. Maybe not full stalker status, but you or an assistant definitely need to be proficient enough to locate public profiles. And you need to know enough to warn clients to stop Facebooking or Instagramming or Tweeting—no social media updates that you wouldn’t broadcast in a religious setting while the case is pending.
And if you still aren’t convinced, consider this: as of December 23, 2015, twenty states had adopted an ethical duty of technological competence, based on the ABA’s Comment 8 to Model Rule 1.1, which states:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)
For more on the duty and the ongoing parade of states that are adopting it, visit the great Robert Ambrogi’s blog post and discussion on the duty. Personally, I think the rule is vague enough that there is no way that an attorney could face discipline for not employing Facebook stalking in a custody case—but social media research is such a benefit to clients, and relatively simple to do once you learn it (or your paralegal does), that there really is no downside to doing so.
Finally, Megan Zavieh, an ethics counselor writing over at Lawyerist, makes the really great point that even without the rule amendment, “The rule of competence requires a lawyer to possess the ‘skill’ reasonably necessary for representation, and it would be a losing argument to say that any lawyer today can competently represent a client without knowing the basics of technology.”
Chandra Moss (CFLS), Kristen Holstrom, Mary Melech, and William Peacock are all family law attorneys at Holstrom, Block, and Parke, APLC., a family law and estate planning firm with offices in Orange, Riverside, and San Bernardino Counties.