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FAMILY LAW: How much is too much with social media posts?

Gregg Herman

A Connecticut judge recently ordered a divorcing couple to share their Facebook and other online social media passwords.

The order was made in response to the husband’s claim that his wife wrote incriminating posts on Facebook about her feelings toward the children and her ability to care for them. According to one news source, this order “underscor[es] the importance social media information plays in family court cases.”

A recent poll by the American Academy of Matrimonial Lawyers found that 80 percent of its members used social media posts, mostly from Facebook, as evidence in a divorce in the past five years.

In addition, a radio ad by a national family law firm (for men!), which has a Milwaukee office, advises potential clients that their spouse’s lawyer will be checking their social networking posts. Really? Is this a common occurrence in family law in Wisconsin?

Not in my experience.

Certainly, part of the absence of this evidence is because Wisconsin is a no-fault state. Courts take that very seriously.

So, for purposes of property division and spousal support, evidence of wrongdoing — whether obtained through social media or otherwise — is inadmissible. In fact, most courts in my experience get rightly angry at any lawyer who tries to introduce such evidence, essentially asking the court to ignore the law.

Custody and placement cases, on the other hand, present a different analysis. In theory, bad acts broadcasted on social media such as Facebook can be important evidence to decide what happens to children.

Why the “in theory” qualifier? Because the evidence needs to be strictly tailored to the result sought. Character assassination is not, in and of itself, related to where the children will be living. There is (fortunately) no requirement that a parent has to be a perfect human being, or even a perfect parent, to have placement with a minor child.

Social media has severe limitations to become admissible evidence. The age of the evidence, for example, might make it irrelevant. Does drinking in college reflect someone’s fitness as a parent? Maybe if that parent is still in college. Not so much if the incidents occurred many years ago.

Similarly, the conduct must be directly related to parenting, and more specifically to the placement schedule. That’s easy if the conduct is severe — for example, if it proves alcohol abuse or use of illegal drugs. Under those circumstances, perhaps placement needs to be supervised, or even held open entirely.

The more difficult question is when, as is frequently the case, the social media postings exhibit poor judgment, but not to the degree where placement needs to be supervised. In such instances, why are the best interests of the children promoted by that parent having one, two or even three days a week less? If the parent’s judgment is so bad that placement needs to denied or supervised, that’s one thing. It’s more difficult where placement needs to be curtailed, as there is no formula equating placement schedules with less-than-perfect behavior.

This is not to say that divorce lawyers should not participate in social media. Indeed, in addition to following my own kids’ exploits (fortunately, most of it rather tame), I’ve found another valuable use.

Family law is a great practice area if you love human beings and the human drama in which they are involved. During a divorce, we learn intimate details about our clients and develop an interest in their lives. The best reason to practice in this area is to help people, including their children, improve their lives. (What, you thought it was to make money?)

However, after the representation is concluded, we tend to lose contact with these people whom we were trying to help. Some of that is due to attorneys drawing the line between professional concern and personal involvement. Some of that is due to our being a reminder to the clients of a bad time in their lives.

“Friending” clients on Facebook allows me to stay in touch with their lives without being intrusive. Since you can only “friend” (a great verb!) another person with permission, you are not being a spy. But, you can still keep up with his or her life.

The same, of course, is true of other people with whom I don’t hear from as much as I’d like. So, please, “friend” me. As a divorce lawyer, I need all the friends I can get!

Gregg Herman is a shareholder with Loeb & Herman S.C. in Milwaukee, which practices exclusively family law. Herman can be reached via email at gherman@loebherman.com.

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