Tag: family law social media

Your Social Media Divorce Farce

When your divorce becomes social media fodder because you yourself are posting things online about it, what are the risks? Lifestyle and mommy blogger Eva Amurri Martino – who has posted to her followers that she and her husband are going to “lovingly part ways as a couple” (aka divorce) – may find out the hard way.

Social Media Divorce

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Eva, the daughter of Susan Sarandon, and her husband who is a former soccer player, announced their split with simultaneous posts on both their Instagram and Twitter accounts. In the photo, they are beautiful and laughing on their porch with their two adorable young children, despite the somber message.

Eva is 23-weeks pregnant with the couple’s third child, making the beautiful laughing picture and self-described “lovingly parting ways” description seem like a total farce.

The couple also has been remodeling a home and both posted declarations of love on their anniversary less than a month ago. Her followers immediately began speculating what happened on various internet forums, and they have become tabloid fodder.

Florida Divorce and Social Media

Eva Amurri Martino’s decision to “lovingly part ways” and broadcast her divorce to the world is part of the recent phenomenon of the “divorce selfie” and other social media announcements.

I’ve written about the widespread use of social media in society, and how that impacts family court cases. Social media evidence is increasingly becoming important at trial – especially when it comes to authenticating exhibits in family court.

Some exhibits are so trustworthy they don’t even require a witness to authenticate. Evidence Rule 201 lists matters which a court must judicially notice, meaning a judge does not have discretion but to admit indisputable evidence.The list is short, and includes laws of the Congress and Florida Legislature; Florida statewide rules of court, rules of United States courts, and U.S. Supreme Court rules.

Rule 202 includes even more matters, but also provides judges leeway in deciding whether or not to take judicial notice. For example, the statute allows a court to take judicial notice of facts that are not subject to dispute because they are “generally known within the territorial jurisdiction of the court”, and facts that are not subject to dispute because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”

With evidence of foreign governments using social media to spread disinformation and propaganda, and the widespread use of fake social media accounts, you have to wonder whether the genuineness assumption of evidence in family court still stands.

Create a Post

Eva and Kyle’s divorce raises an interesting question: when your brand is your life, how do you post divorce information? Influencers usually handle this in three ways: They ignore it and “keep it off the feed,” they offer an unfiltered look at their hardship, or they go dark until the storm passes.

Eva has kept up her usual posts and aesthetic, but mixed in the realities of her new situation. Her activity over the past week features her usual glam, well-lit Instagrams, but with divorce talk sprinkled in. For example, she hosted a “slumber party” for her girlfriends, complete with makeup, pearls, and matching silk pajamas. She also has been posting family shots, now missing a member.

For his part, Kyle posted this absolutely heartbreaking post the other day. Something about how peppy and lovely it looks kind of kills me?

If you’re considering divorce — even if you plan to file for divorce online and expect it to go amicably — take some precautions. Lockdown privacy settings for example, and be cognizant that your posts could be used against you.

Even if things are moving forward in an amicable fashion, you don’t want to turn your divorce into a contested legal battle. That may include keeping your divorce off Facebook and Twitter. If you have children, consider an agreement that child-related social media posts are limited especially photos and posts that give insight into children’s personal lives.

Influencers like Eva, who have used their children to create a family brand, may have little choice but to make glowing comments such as “lovingly parting ways” while 6-months pregnant and in the middle of a remodeling project.

The Buzzfeed article is here.

 

Social Media, Family Law, and Russian Hacking

Hypothetically, if Vladimir Putin opened fake social media accounts in your name to ruin your family law custody case, what would happen? An unfortunate Florida woman, who was recently sentenced to five months in jail for a few posts on her Facebook page, found out the hard way.

Social Media Family Law

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The Father, Timothy Weiner, had been warned. The judge in his custody case ordered him to stop harassing his ex-wife on Facebook. The family court judge issued two orders to keep any information about the case off social media and prevent family members from publishing information about the custody action on social media.

“Neither parent,” Pasco Circuit judge Lauralee Westine wrote in her order after the September hearing, “shall disparage or threaten the other parent on social media.”

But a week later, a photo of his ex-wife surfaced on a father’s rights Facebook page called “Mothers who abuse kids.” Weiner hit the “like” button. Fast forward to this summer. The Father’s new wife, Jessie Weiner, who is not a party to his custody case, was not served with the order.

In one of Ms. Weiner’s Facebook posts, sensitive family court documents concerning her Husband’s child from his previous marriage were posted. Court records indicate that someone on Weiner’s Facebook even shared an old news article about when her husband was jailed over a Facebook post.

The uploaded Facebook documents had to do with the ongoing family law custody case between Weiner’s husband and his ex. The family judge was not amused, and took swift action. She entered an order directing Ms. Weiner to show cause why she should not be held in indirect criminal contempt for failing to obey her orders.

Ms. Weiner received the order to show up in court the day before the 4:30 p.m. hearing that had been scheduled. Her lawyer, whom she retained on the same day as the hearing, argued for dismissal, for the judge’s disqualification, and for a continuance.

“Next thing I know, I hear five months in the county jail. “No matter what I said, I was guilty.”

The family judge denied all of her motions, found Ms. Weiner guilty of indirect criminal contempt, and sentenced her to five months’ confinement in jail for contempt of court.

What if, as Ms. Weiner argued, the social media accounts were not authentic, i.e. she didn’t make the Facebook posts?

Florida Authenticity and Social Media

I’ve written about the widespread use of social media in society, and how that impacts family court cases. Especially when it comes to authenticating documents in family court.

Some exhibits are so trustworthy they don’t even require a witness to authenticate. Evidence Rule 201 lists matters which a court must judicially notice, meaning a judge does not have discretion but to admit indisputable evidence.

The list is short, and includes laws of the Congress and Florida Legislature; Florida statewide rules of court, rules of United States courts, and U.S. Supreme Court rules.

Rule 202 includes even more matters, but also provides judges leeway in deciding whether or not to take judicial notice. For example, the statute allows a court to take judicial notice of facts that are not subject to dispute because they are “generally known within the territorial jurisdiction of the court”, and facts that are not subject to dispute because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”

But with the Russian election scandal, and the widespread use of fake social media accounts, you have to start to wonder whether the genuineness assumption of evidence in family court still stands.

Governments manipulate photographs. It is not unheard of for spouses to hack computers and borrow smartphones to impersonate their owners’ texts. Anyone can set up a Facebook page, email, Instagram, or twitter account.

The increasing use of electronic evidence at trial, and the ease with which it is impersonated and manipulated, pressures us to bolster foundational evidence more than ever. Unfortunately for Ms. Weiner, she was jailed before she could even challenge the evidence.

What’s on your mind?

The Second District Court of Appeals had no trouble quashing the contempt order and freeing Ms. Weiner . . . after she served a month in jail.

First, the order violated Ms. Weiner’s due process rights because she was not subject to or served with the court order that she was accused of disobeying.

Second, the order to show cause was never served on Ms. Weiner within a “reasonable time allowed for preparation of the defense,” as required by Florida Rules of Criminal Procedure. Ms. Weiner’s name did not appear in the order’s service list, and it is undisputed that she received the order the day before the hearing and did not engage counsel until the morning of the hearing.

Finally, the trial judge should have disqualified herself because the contempt conduct involved disrespect and criticism of the judge.

This rule assures that a person cited for a contempt of court which involved a criticism of a judge, would not be tried before the judge who was the subject of the criticism.

The opinion is here.