By now, I’m sure that most of you have read how Facebook, and every similar social networking site, makes posting “too much information” on the internet just too easy.  Do a quick Google search for “Facebook and Divorce” and you’ll find links to many articles discussing the correlation of postings on internet social networks to an increase in divorce.  The American Academy of Matrimonial Lawyers says that 81 percent of its members have used or gone up against evidence in court plucked from Facebook, MySpace, Twitter, YouTube and LinkedIn over the last five years.

Consider the following situations:

• Mom denies in court that she smokes marijuana but posts pot-smoking photos of herself on Facebook;
• Dad claims minimal income from his small business and various “cash only” side jobs he performs but places posts and photos on Facebook of himself on fishing trips, gambling at the riverboat, and with new vehicles, including a Harley Davidson motorcycle; his new girlfriend also posts pictures of some of the gifts she has received from Dad;
• During a custody dispute where Dad is alleging that child’s grades are falling, child is not receiving proper medical treatment, that Mom is allowing numerous men to have access to the child, and that Mom is not adequately supervising child, Mom posts profanity laced messages and pictures of herself partying on different vacations with numerous men in very “R-rated” poses and degrees of clothing;
• Dad denies Mom’s claims that his drinking is excessive or that he has ever jeopardized the children’s safety, yet Dad posts photos on Facebook showing him usually holding a bottle of beer at family functions or out with his drinking buddies appearing highly intoxicated; and
• After a hearing early in a custody proceeding, Mom posts an update on her case on Facebook and uses profanity to describe the Judge who made a ruling against her.

The growing influence of social networking sites is not limited to divorces or custody battles, though.  Posted pictures and comments are now being used as evidence in Domestic Protection Order hearings, Personal Injury cases, and even Criminal cases around the globe.

Recently, one of our attorneys was in a local Domestic Relations Court defending a client against a Protection Order that was requested by his child’s mother.  Our client happens to be in the military, and he was trying to obtain a “Top Security” clearance.  His child’s mother had flippantly and untruthfully filed for a Temporary Protection Order against our client as a way to prove her loyalty to her new boyfriend.  After our client had broken up with her, she falsely claimed that she feared for her safety, although there was no evidence of any violence or threats between her and our client.  Fortunately, we had a “social networking paper trail” of her texts, emails and Facebook messages.  The messages and posts showed that she had intensely pursued and communicated with our client during the time period when he was allegedly making her fear for her safety.  Once the Judge read her postings and messages showing how angry she was with our client for dumping her, the Judge dismissed the case, with prejudice, concluding she was not credible!

While it might be fun to get some “digs” in against an Ex or make announcements to friends and family about the new automobile, vacations, and relationships, doing so  during a divorce, custody battle, or other legal proceeding is very imprudent.

Whether you have an ongoing case or not, the key is to think before you post!! Ask yourself if those negative comments that you’re about to post or those pictures you’re about to upload of you passed out at a party could somehow be used against you in court.  If they could, resist the temptation and don’t post them!  You have to assume that your one-time “significant other,” or his/her friends, will print every negative comment or confession they ever see about you and that his/her attorney will one day enter those pictures and posts as exhibits at a hearing against you.  Remember, search engines are constantly indexing your comments and photos, which means that the things you might have wanted to be private actually became very public information.

Finally, here are five (5) common sense tips that can help prevent you from getting burned with your online posting:

1. Don’t discuss anything that’s going on in court between you and your lawyer - What is discussed by you and your attorney needs to stay between you and your attorney.
2. Fight the urge to trash people online – What you say can and will be used against you.  So, although it can be fun to bad-mouth certain people who have hurt you, in front of all of your mutual friends, don’t do it!  The ex, your child’s other parent, attorneys, and judges can all read.  Plus, you risk being hammered with a defamation suit or a Restraining Order!
3. Pictures are worth a thousand words –  Actually, they can be priceless when used as evidence in Court, so don’t make the other side’s case that much more easier to win.
4. You can block or “unfriend” but you can’t hide – Always remember that those mutual friends you turn to in times of crisis might be friends with your ex, so don’t assume the things you post are limited to just a few people. Play it safe and just don’t post things you don’t want everyone in the world to see.
5. Don’t lie, make confessions or admissions, or post links to pages that you don’t want your ex or his/her attorney to use – “Just Say No” to posting items that are so obvious.  We attorneys really don’t enjoy facing any of these things in Court.

So in conclusion, use your brain and think very carefully about ANYTHING that you post on any social networking sites on the internet.  If in doubt, just don’t post it! The possible ramifications could be huge!

I am not an Internet or cyberlaw expert by any stretch of the imagination. But I am not alone in that regard according to an interesting Associated Press. story that Judges on the nation’s top court are handicapped by a lack of knowledge about the Internet when deciding related cases–Justice Stephen G. Breyer, a U.S. Supreme Court justice, admits. If you have a minute, click on the link in blue to read some pretty humorous exchanges from the Justices when discussing technology related issues.

Without trying to grapple with all the subtle nuances on this subject, I do think it is important to make people aware that there are potential legal ramifications for anyone who enters another’s email account without permission and prints or downloads stored emails. There are two portions of the Electronic Communications Privacy Act (ECPA): the Wiretap Act and the Stored Communications Act (SCA). Title I of the ECPA, the Wiretap Act, prohibits interception of communication in certain instances.

An important case, especially for family law practitioners to read, is Jennings v. Jennings, a South Carolina case decided in July, 2010.   It involved a wife who learned that her husband was having an affair so she implored her daughter-in-law to access her husband’s email, who did so by changing the husband’s password.   Daughter-in-law accessed husband’s account from her own personal computer in order to read emails exchanged between husband and his girlfriend. Wife and daughter-in-law made several copies of the emails, giving copies to wife’s divorce attorney and a private investigator.

After wife filed for divorce, the husband retaliated by filing a complaint in which he alleged a violation of the Wiretap and Stored Communications Act against wife, daughter-in-law, the private investigator, and the private investigator’s employer. The trial court granted summary judgment against the husband and dismissed the case. It was appealed, and the appellate court reversed the holding and remanded the case back to the trial court allowing the plaintiff husband to proceed with the case but only against his daughter-in-law since she was the person who actually entered his email account.

18 U.S.C. § 2701(a) states that “[w]hoever intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to [an]… electronic communication while it is in electronic storage in such system” has violated the Wiretap and Stored Communications Act.

In order to state a cause of action under section 2701(a), the specifics of the email account and communications must fall within the definitions provided in 18 U.S.C. § 2510 (2002), 18 U.S.C. § 2711(1) (2009) and be stored in “electronic storage”.  There are several definitions in these sections that relate to whether the contents of an email qualify for protection. But rather than delve into all the details, it appears by the holding in Jennings (and other cases) that entering a basic email account without authorization would most likely be a violation of the Act. It is also worth noting that one district court recently held that online networking sites such as a Facebook, MySpace, and Media Temple meet the Stored Communications Act definition of Electronic Communications Service provider because all three sites provide private messaging or email services.

Analysis:

There are several potential issues that could arise when a person accesses his or her spouse’s emails. First, if emails are stored on a computer hard drive rather than on an online account and one spouse accesses the emails from the computer hard drive and not from the online account, it appears that the emails would not be protected as they would not be stored by an Electronic Communication Service. Second, if the emails are saved by one spouse onto a family computer hard drive, are not password-protected, and the other spouse gains access to the emails through the same route, then it is likely that a court would find that the spouse had authorization to access the emails. Third, while section 2701(a) prohibits accessing the emails, once a spouse is in possession of the emails, whether acquired legally or illegally, he or she may use those emails without any limitations under the statute. See, e.g., Sherman & Co., 94 F.Supp.2d at 821.

Conclusion:

Spouses may well be successful in claims against one another under the Wiretap and Stored Communications Act in Ohio courts under facts that generally apply to most people’s email access and accounts. Although some courts have held otherwise, I would predict that Ohio courts will hold that basic email providers; social networking sites such as Facebook, MySpace, and Media Temple; and possibly even dating sites such as E-Harmony or Match.com meet the Stored Communications Act’s definition of an Electronic Communication Service. Likewise, although no Ohio court has interpreted the language “for purposes of backup protection,” as long as the offending spouse accesses the other spouse’s email account through the internet there should be few problems meeting this requirement. So, individuals need to realize that even though there may be a strong desire to enter their spouses email account and do some “detective work,” recognize that such action may result in a civil law suit being filed! You could then become involved in two emotional and expensive legal proceedings both pending at the same time.

A large body of research overwhelmingly suggests children do best when they have both a mother and a father involved in their lives. Specifically, children whose fathers participate in raising them do better in school, are less likely to get into trouble with the law, and are more likely to be better parents themselves. While more fathers are being awarded legal custody of their children, the statistics seem to indicate that the majority (between 75 and 85 percent) are awarded to mothers. Today, nearly 20 million children live in a home without a father (2002 U.S. Bureau of the Census). Recent Census Bureau child-custody statistics indicate that nearly 40% of non-custodial fathers have no access or visitation rights whatsoever with their children.  A very troubling statistic, indeed! Of those that do have visitation rights, what percentage are actually seeing their children regularly? The statistics in the studies vary greatly. But it seems clear that frequently the amount of contact the children have with their fathers diminishes over time.  A recent study published in the Journal of Marriage and Family finds that children born outside of marriage are less likely to be visited by their father when the mother is involved in a new romantic relationship. It also finds that the mother’s social decisions typically have a direct affect on the contact between a father and his child. However, like most studies which I have read, it concludes that non-residential fathers SHOULD continue visitation despite the inherent complications when mother starts dating as it is in the long term best interests of the child.

A review of the research that I have seen also makes it clear that children, especially daughters, benefit considerably when the parent they are not living with nevertheless does everyday things with the child, from shopping, reading, visiting, doing homework, watching TV together, to spending holidays together.  For a school-age daughter, doing everyday-type things together with the parent she is not living with is the strongest predictor of psychological well-being.

Don’t Let Geographical Distance Deter You!

Perseverance may no doubt be required, but Dads need to press on to be as involved as much as they can with their children. I recently concluded representation of a father who has fought in a rural Ohio juvenile court for the last 4 years to expand his parenting time and to ultimately obtain an order of Shared Parenting for his 5-year-old daughter, despite his living in North Carolina. His perseverance was incredible as were the efforts of a dedicated Guardian ad Litem who flew two times to father’s home in North Carolina to evaluate firsthand their strong and developing father-daughter bond. This wise father had allowed his relationship with his daughter to grow naturally and gradually over the years. As much as he wanted her with him, he elected not to force any extended out-of-state visitation beyond his daughter’s comfort zone. What has occurred is that his daughter wants to spend as much time with him as possible. This child will have a much better chance to grow to become a very healthy adult because of Dad’s efforts despite a very contentious court battle. The child will be attending school in Ohio, but father has court-ordered parenting time both in Ohio and North Carolina as well as utilizing virtual visitation online to supplement his "in-person" contact. Dad continues to read books to her at night online with the use of a web camera.

I would like to share a quote by George Bernard Shaw which seems apropos:

"People are always blaming their circumstances for what they are. I don’t believe in circumstances. The people who get on in this world are the people who get up and look for the circumstances they want, and, if they can’t find them, make them."

If that one doesn’t work for you, here is one that I am sure my client would especially enjoy since it is from one of his heroes, Erin Brokovich:

"Take It From Me: Life’s a Struggle but You Can Win.”

Think outside the box. In this day and age, staying connected with a child is possible regardless of geographical distances, acrimonious litigation, work schedules or other obstacles. An excellent resource for helping parents dealing with these issues is the Separated Parenting Access and Resource Center (SPARC), a non-profit organization dedicated to promoting the best interests of children involved in custody and divorce proceedings. Click here to go to SPARC’s website. Also, you might be interested in reading my prior articles about Virtual Visitation. Click here to read the first about Utilizing Technology to Supplement Parenting Time. Click here to read the second about The Legal aspects of Virtual Visitation.

Here is a list of links to various online assessment tools that might be valuable for those interested in learning where they might score in areas that can frequently impact a marriage. Originally, I just intended to post an online depression assessment tool since many people going through a divorce suffer from some degree of depression. But once I started on the project, as you can see, the list kept growing. Here they all are:

• Depression Screening Test
• Inventory of Depressive Symptomatology
• Anger Management Test
• Arguing Style Test
• Domestic Violence Screening Test
• Woman Abuse Screening Test (WAST)
• Battered Woman Test
• Alcoholism Test
• Drug Abuse Screening Test
• Cocaine Addiction Test
• Marijuana Addiction Test<
• Internet Addiction Test
• Cybersex Addiction Test
• Sexual Addiction Test (SAST)
• Pornography Compulsion Test
• Gambling Addiction Test
• Food Addiction Test
• Compulsive Spender Test
• Compulsive Shopper Test
• Obsessive/Compulsive Disorder Test
• Domination/Submission Test
• Mood Disorder Test
• Social Anxiety/Phobia Test
• Stress Test
• Workaholic Test
• Marriage Strength Test (Gottman)

Additionally, if these assessment tools are not what you are looking for, consider checking out my previous post, “Divorce Calculator – We have an App for That.” Economist, Betsey Stevenson, from the University of Pennsylvania’s Wharton School in Philadelphia, developed the calculator based upon a recent study which has shown that the lowest divorce rates are among people who marry later in life and have more education; the highest divorce rates are among those who marry young with less education.

In any event, if you have a problem, please recognize that counseling with a qualified psychologist can work wonders as long as you are committed to the process!

Recently, while doing some research for another blog article, I came across a “divorce calculator” posted on the divorce360.com website. With their permission, I have added it to this article below. The calculator is intended for first marriages only. The calculator works by comparing peoples’ backgrounds to yours. You and your spouse might well end up with two different calculation percentages because each of you comes from different backgrounds. The website advises that the best way then to determine your risk for divorce as a couple is to average the two percentages together. The statistical information they use comes from “historical data based on information given by real people and collected as part of the U.S. Census”. Click here to read more about the calculator.

I am, of course, not in a position to comment on the accuracy of the calculations. There are, of course, many other important factors which are not taken into consideration by the calculator which could alter the percentages considerably. Nonetheless, check it out if you want.

I wonder if the new iPhone I see advertised on television (which says it has 25,000 applications available) has an App for this too.

In the second part of a two part series, Attorney Robert Mues looks at the legal aspects of Virtual Visitation.

Ohio Revised Code Section 3109.051(A) provides, in part, that, “Whenever possible, the order or decree permitting the parenting time shall ensure the opportunity for both parents to have frequent and continuing contact with the child, unless frequent and continuing contact by either parent with the child would not be in the best interest of the child.” In 2006, a bill was introduced in the Ohio Senate to allow Juvenile or Domestic Relations Courts to grant a reasonable amount of “electronic communication” between a parent and a child so long as the electronic communication was in the child’s best interest and the equipment was readily available. In Senate Bill 341, electronic communications was defined as “communication facilitated by the use of methods of communication such as the telephone, electronic mail, instant messaging, video conferencing, or other wired or wireless technologies via the internet, or another medium of communication that allows a party who has been granted parenting time, companionship, or visitation rights to communicate with a child during times in which the child is not physically present with the party.” While the Ohio bill stalled in committee. Florida, Utah, Texas and Wisconsin have all enacted “virtual visitation” statutes.

Magistrate Elaine Stoermer of the Montgomery County Domestic Relations Court had written an excellent article on the subject five years ago! At that time, she commented that “technology has progressed from rotary dial to the internet, to picture phones to TV phones.” Click here to read her article. Costs were much more of a factor then. Computers and broadband internet access are now common place. Both parents and children have become much more techology savvy. So many of the obstacles, inherent then with newly emerging technology, have been eliminated.

I searched for “virtual visitation” cases all across the country while researching this article. I could not find any Ohio cases. The most interesting analysis was contained in Gilbert v. Gilbert, 730 N.W.2d 833, issued by the Supreme Court of North Dakota in 2007. The Court stated:

The district court can also consider whether virtual visitation can be used to supplement in-person visitation.  Virtual visitation includes using the telephone, Internet, web-cam, and other wireless or wired technologies to ensure the child has frequent and meaningful contact with the non-custodial parent. It is most useful in cases such as this where the child and non-custodial parent are accustomed to seeing each other on a regular basis but no longer will be able to because of the relocation. Virtual visitation is not a substitute for personal contact, but it can be a useful tool to supplement in-person visitation. Virtual visitation is becoming more widely recognized as a way to supplement in-person visitation. See, e.g., Tibor, 1999 ND 150, ¶ 26, 598 NW.2d 480 (“modern transportation reduces the measure of distance from days to hours, and instant communication is available through phone and cable links”); McCoy v. McCoy, 336 N.J.Super. 172, 764 A.2d 449, 454 (App.Div.2001) (using the Internet to enhance visitation was creative and innovative); Fla. Stat. Ann. §61.13001(9)(a) (2007) (urges courts to consider virtual visitation in relocation cases); Utah Code Ann. §30-3-33(14) (2007) (advisory guidelines for parent-time arrangements suggest using virtual visitation to supplement in-person visitation); Wis. Stat. Ann. §767.41 (2007) (parenting plan should include information about using electronic communication between child and parent).

Judges even in contested cases should consider including provisions for video conferencing and other virtual visitation options especially where the parents have computers and the financial means to pay the costs associated with the interactive services. When the parties agree and are cooperative, the language in the order may simply say “The parties shall cooperate in utilizing interactive electronic communication technology including internet email, instant messaging, web cam/video conferencing or other wired/wireless technologies with each parent as a supplement to in-person parenting time.” While this language might suffice in some cases, in most cases, more detailed language would be suggested to avoid misunderstanding and contempt motions. Michael Gough, credited as the father of virtual visitation and founder of the virtual visitation portal (www.internetvisitation.org) has listed 10 items which the drafter of the order should consider including:

1. Which forms of “virtual visitation” are being ordered (video conferencing, email, video mail, instant messaging, etc.).
2. Equipment required (hardware, software and internet connection)
3. Installation and training services.
4. Which parent is required to pay for necessary equipment and services.
5. Schedule, e.g., days of the week, number of times per week, and times of day for virtual visitation to occur.
6. Which parent is responsible to initiate the virtual visitation session.
7. Deadline for custodial parent to have equipment ready and video conferencing in full operation.
8. If equipment malfunctions or breaks, what time period is allowed for computer repair before court sanctions are triggered.
9. Incorporation of the Children’s Bill of Rights, if one exists for your state.
10. Remedies and sanctions for noncompliance, including contempt and attorneys fees.

The benefits of virtual visitation are many.  But perhaps the most important is that implementing these additional interative communications may help reduce the negative psychological impact of separation on a child.  Kids often blame themselves when parties divorce and separate.  So whatever parents can do to reduce children’s anxieties or feelings of abandonment will help the children’s emotional development into adulthood.

In the first of a two part series, Attorney Robert Mues examines Virtual Visitation and the different options a divorced parent can use to communicate with their children. Part 1 – Utilizing Technology to Supplement Parenting Time.

Not too long ago, divorced parents had limited communication options to stay in touch with their children.  The old rushed and often dry “phone call approach” was better than nothing but had drawbacks.  There were long distance phone charges and issues with time zones.  New communication options have improved considerably! It is much easier for you to keep in touch with your children after a divorce.  Most of these approaches require both parents to have a computer with broadband connections.  Here are some options to supplement traditional face to face parenting time:

Cell Phones: Many companies are selling cell phones designed specifically for kids which feature built in parental controls to restrict incoming and outgoing calls or text messages.  Check out firefly mobile (www.firefly.com), LG Migo from Verizon Wireless and Kajeet (), which also includes a GPS phone locator service allowing a parent to find out where the phone is at various times of the day.

Email: Email features have expanded so it’s easy to share photos and videos by incorporating a digital camera.  A scanner can be a great addition for a parent or older child to transmit copies of homework assignments, report cards and other written items.  Perhaps scan a copy of a child’s recent art project.

Webcam: Webcams have dropped dramatically in price.  Skype, Google, Yahoo and AOL all have made it easy to talk with your child and see him or her on the computer screen at the same time.  Creative parents have used a webcam to record themselves while reading a book or singing happy birthday. 

Instant Messaging (IM): Many kids are on the computer a lot. Instant messaging is similar to email but it is in real time.  Google, MSN, AOL, Yahoo and others have IM services.  Instant messaging makes it easy to communicate with a child by typing a message and immediately getting a response.  Be ready to learn some “shorthand” slang and acronyms that kids use to communicate these days such as LOL (laugh out loud), BTW (by the way), and TTYL (talk to you later).

etendi BRIDGE: Last month etendi.com launched BRIDGE (www.etendi.com) an easy to use, interactive, safe and secure web-based meeting place.  It has been specifically developed for non-custodial parents or co-parenting situations, grandparents, military families, or the heavy business traveler.  BRIDGE allows family members to stay connected by providing a single place for them to be together online.  Features include live video phone calling, shared spaces for photos, videos and documents, personal notes, an interactive white board, and a shared calendar.  Parents, kids and other family members can be online at the same time and have a video phone call, play games or work on homework together.

BRIDGE has combined the web-based tools that parents and kids enjoy into a simple subscription based system which eliminates external, undesirable content or SPAM reaching the kids.  To learn more about BRIDGE, click here.

These “virtual visitation” tools are not suggested as a replacement to in-person contact but rather, as a supplement. The more options a parent can implement to stay in touch with a child, the stronger the bond between the two should grow. Long-distance parents should think “outside the box” and be creative in integrating virtual visitation tools to stay in close communication with their children. An excellent online resource to learn more about this topic is The Virtual Visitation Portal (www.internetvisitation.org), whose mission includes helping educate and providing free information on how virtual visitation can help both parents who are separated or divorced stay in touch with their children.

Next week, I will address some of the legal aspects associated with virtual visitation issues.