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Rhode Island Divorce Court - A RI Divorce commentary on the MobileMedia Article

From Mobledia News April 25, 2011 by Emily Anderson

Facebook is playing a role in divorce cases and custody battles, as users continue to underestimate their exposure online where the line between public and private are increasingly blurred.

Leading attorneys reportedly advise clients to refrain from making disparaging remarks about their soon-to-be-ex-spouse or any professional involved in divorce proceedings on Facebook because the postings could be used in court.

Legal blog Rhode Island Divorce Lawyers Articles recently noted even if a person doesn't think their ex-spouse is watching for comments that could be used as evidence a person is cheating, a bad parent or simply uncooperative, a Facebook "friend" could be watching for them.

An Indianapolis ABC news station recently interviewed a Marion County, Ind. judge, Cynthia Ayers, who told the station that social media is "playing a bigger and bigger role all the time" in custody and child protection cases.

"I saw a picture of a toddler in front of a coffee table with bags of marijuana, whiskey bottles and a big pile of money," said Janice Davidson, director of the Marion County Domestic Relations Counseling Bureau, to the station. "We called Child Protective Services and got them involved so they could make sure that child was protected."

In March, the American Academy of Matrimonial Lawyers found that 80 percent of divorce cases included social media posts, mostly from Facebook, as evidence in the past five years.

Taken in context with a host of examples of supposedly-private social media turning into damaging evidence, it’s clear that social media is increasingly just an extension of society, and that people continue to think they have more control over who sees their social content than they actually do.

It's not just in the courtroom where the supposed private revelations of social networking affect more public aspects of lives. Other recent cases illustrate how the culture is still trying to navigate the divide between the public and private aspects of social media.

Georgia school teacher Ashley Payne was asked to resign from her job two years ago after she posted a photo of herself drinking alcohol on vacation on her Facebook page -- despite the fact that there’s no law saying teachers can’t drink on vacation.

In some cases, those accused of Facebook naughtiness have successfully fought back. Dawnmarie Souza, a medic fired last year after she posted disparaging remarks about her employer, later won a settlement from the company from the National Labor Relations Board.

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There's no doubt that social media is playing a larger part in family court these days.  In 1 out of every 4 cases I address, I have found that Facebook has become the device by which a spouse learns either of a spouse's infidelity or dissatisfaction with his or her home life.  Is it necessarily the cause of divorce or disharmony in the family unit?  In my opinion, no.  However, it is certainly a primary factor in the discovery of more information that might not otherwise be known.

Yet the law and the Rules of Evidence have yet to catch up with this social media trend.  Various past and current cases in Rhode Island Family Court as well as articles on a national level demonstrate that Facebook and other forms of social media are is also too great a source for abuse and/or misunderstanding both in the family courts and outside them.

It is all too easy for an attorney as a staunch advocate for his or her family law client to advocate for an interpretation of a Facebook picture and/or online exchange with others to take on a meaning the writer never intended.  In communications, context is key and the state of mind of the writer is most important when coupled with that context.  

Though it is said that "a picture is worth a thousand words", a picture taken or a text message made in a reactionary moment of anger in what has otherwise been a good marriage, could simply be a person venting.  Many clinical psychologists agree that many people, especially women, vent verbally in emotional settings in order to let off some steam and move past an angering moment.  Such an action does not, however, reflect a person's entire mindset in a marital relationship any more than one inappropriate picture posted by a child on Facebook while mom or dad is at work is a true indication that a parent lacks the capacity to supervise the child and therefore is a bad parent.

Though social medial it is becoming more prevalent as a means of uncovering what may or may not be the real demeanor or motive of a person in a divorce or family law case is also subject to abuse and misinterpretation both in and out of the courtroom, by attorneys, spouses and children.

Ultimately, social media is something that the law must eventually adapt to and/or evolve with to some degree.

For now, there is no doubt that social media will continue to expand.  What people must be most conscious of is that when using the internet, expanding forms of social media, and even email, you should not expect that what you type is actually private.

Authored By:

Christopher A. Pearsall, Attorney-at-Law

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Note: If this article contains a case scenario with names, dates or amounts, any resemblance any connection to any person or situation now or previously existing is purely accidental, unintentional, and is merely a mistaken creation in the mind of the reader.

* The Rhode Island Supreme Court licenses all attorneys in the general practice of law.  The court does not license or certify any lawyer as an expert or specialist in any particular field of practice.

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