Judge Orders Exchange of Facebook and Dating Website Passwords in Custody Fight

Many of our San Diego Family Law client’s use Facebook and other social network or dating webpages. This is not surprising considering that Facebook alone has more than 800 million active users. More than 50% of those active users log on to Facebook everyday and on average more than 250 million photos are uploaded per day. Almost every social network and dating website can be accessed by a cell phone or tablet.We have previously blogged about the use of information from social network and dating websites in divorce cases. We have also previously cautioned readers of our blog (as well as our clients) regarding what not to post on Facebook and other social network and dating sites while going though a divorce. This includes NOT posting wild pictures of yourself, NOT tweeting about job woes or problems with the kids and NOT posting about drug and alcohol use. It is also important to adjust your privacy settings. In other words, do not post anything to a social network or dating website that you would want your former spouse, children or the family law judge in your case to see or read.

Recently, there have been some interesting and seemingly conflicting orders regarding requests for Facebook or other social network or dating website information.

In one case reported by the ABA Journal, a judge in a Connecticut divorce case ordered the parties’ attorneys to exchange their clients’ Facebook and dating websites passwords. Although the order stated that the parties themselves would not be given the passwords of the other, the order also stated for neither party to visit the other party’s social network website and post messages purporting to be the other. You can imagine what one party must have posted on the other party’s social network for that order to be made.

However, in another recent personal injury case involving an accident from 1993 in which the insurance companies denial of benefits did not question Plaintiff’s limitations or need for care, the insurance company still sought, through discovery, the Plaintiff’s Facebook password, a list of his Facebook friends, along with other Facebook activity and information including, all photographs, messages, status posts, wall posts, comments, groups, and group memberships. When the Plaintiff refused to provide the information, the insurance company filed a Motion to Compel to force the Plaintiff to provide the information. Fortunately for the Plaintiff, the court denied the Motion to Compel on the grounds that the Facebook information was not relevant or likely to make any disputed fact more or less likely, despite the insurance company’s argument that Plaintiff’s Facebook posts would likely contain information about the Plaintiff’s daily activities and thoughts. The court found that any possible relevant information which could be gleaned through the Plaintiff’s Facebook information would also be available to the insurance company through less intrusive, less annoying and less speculative means. The court characterized the insurance company’s request for Facebook information as a fishing expedition at best and harassment at worst.

However, unlike in most civil cases, the information contained on a social networks and dating websites is often very relevant in family law cases, particularly to the issues of custody and visitation. It may also be relevant to the issues of property division and fiduciary duties.

In the Connecticut divorce case discussed above, one party was requesting full custody of the children and argued that the Facebook and dating website information was relevant to the other party’s ability to take care of their children. Apparently, the Court was persuaded by the argument and ordered the exchange of passwords.

Another interesting argument, that has not yet been determined by the courts, is whether the type of order issued in the Connecticut divorce case is valid or enforceable in light of Facebook’s Terms of Use Provisions. Following the Connecticut order would arguably violate the these two Terms of Use Provisions:

1) You will not solicit login information or access an account belonging to someone else. and;

2) You will not share your password, (or in the case of developers, your secret key), let anyone else access your account, or do anything else that might jeopardize the security of your account.

As long as social networks and dating websites continue to be popular, we anticipate that requests for information and pictures from them will become more and more frequent in divorce cases.

San Diego Family Law Attorney Nancy J. Bickford is the only certified family law specialist in San Diego who is a CPA and also holds an MBA. Don’t settle for less when determining your rights during a divorce or child custody case. Contact us or call us at 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.

iPad2 photo courtesy of inUse Consulting

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