Posted on, Jul 31, 2017 in Electronic Evidence by Jacalyn Barnett
Ten years ago, when I was the Quote of the Day in the New York Times, “No one cares more about the things you do than the person that used to be married to you”, on the rising use of EZ Pass records and other electronic evidence in divorce proceedings, I was challenged as being incredibly cynical. Time, however, has shown I was merely being prescient.
While there are countless, priceless advantages to the internet and social media, such as accessibility of medical research globally, the possibility of medical treatment being given remotely, the ability to have visual and auditory communication with loved ones irrespective of distance, there is a minefield of hazards at every keystroke or movement.
Ironically, when potential clients come into my office about the possibility of a divorce or custody dispute, almost all of them underestimate the digital footprint they have been leaving every moment of every day. Nothing can really ever be hidden anymore.
Electronic communications, texts, emails and postings are introduced as evidence in courts of law everywhere. For divorce and family lawyers, these communications are a treasure trove to document where an individual was at a specific time and day, proof of improper parenting or lifestyle issues.
We are not unlike defense lawyers in a personal injury case where a claimant’s social media pages are scrutinized to discover evidence to disprove his or her claims. For example, there was an 18 year old high school student, Fotini Lourtesis, who indisputably was hit from behind by a driver. Fault had been resolved but the teenager also claimed resulting injuries to her neck, shoulder, memory and concentration had destroyed her social life. At trial, in an effort to challenge her assertions, counsel for the defense was permitted by the Court to access her Facebook photos which led to her undoing. Some of her most recent postings captured shortly before the trial documented her partying. As a result, Fotini’s credibility was destroyed, she was found to be unworthy of belief and her claim for damages for pain and suffering was dismissed.
As someone who handles what I consider to be even more personal injuries, divorce and custody, in addition to cautioning my clients to be mindful of what they post online, I have no hesitation of using that type of evidence to eliminate my adversary’s claims.
Several years ago, I represented a female client who, in exchange for her relinquishment of serious financial rights against her former husband, relocated with his permission to another State for two years. When the relocation time was about to expire, the Mother instituted an action in their new State to have a determination as to where it would be in the best interests of their daughter for her to reside in the next chapter of her life. The Father thereupon brought an action in New York, demanding the Court compel his former wife and child to return to New York State, despite the successful relocation and transition of their daughter for two years in a different State and despite his former wife’s prior institution of an action there. I argued before the New York Court that in addition to my client’s prior institution of her application elsewhere, her former husband no longer had standing to address these issues in New York State, as he had relocated out West at approximately the same time as his former wife and child had left the State.
The New York Court determined its first responsibility was to resolve the issue of residency within the meaning of the UCCJEA, the Uniform Child Custody Jurisdiction and Enforcement Act, DRL Section 75. Under oath, the Father adamantly insisted that he had continuously remained a resident of New York State.
Unfortunately for him, my client reproduced scores of text messages which confirmed his whereabouts for their child’s access exchanges, the online applications they had both submitted in connection with medical forms to summer camps, but the most powerful of our evidence was his Facebook posting of his farewell party in New York at the time of my client’s relocation, followed by two years of his boastful announcements of his social activities where he actually was living. Wisely, my client downloaded and printed the montage of evidence. After the hearing, the Court considered the testimony and evidence and found that the Father had contemporaneously relocated from New York and was no longer a resident of New York State, despite the fact that he continued to have a legal address here. As a result, New York State no longer had jurisdiction to consider his applications. In reaching this determination, the Court specifically found the Father had “…announced his relocation on social media… advised the mother and others through social media and text messages of his new… address.”
As Richard Stallman, a programmer, activist proclaimed: “Facebook is not your friend. It is a surveillance engine.”
Be careful what you do, because everyone is watching.