Melody M. v. Robert M.: Courts provided sole custody of children to the father after finding evidence that the mother used social media to demean her child.
By Leigh Baseheart Kahn, Family Lawyer
The parties in the matter of Melody M. v. Robert M. entered into a separation agreement in 2006 which provided that the parties would share joint custody of their three children, then two, three, and six years old. This joint custody arrangement was confirmed in a stipulation executed by the parties in February 2009, which also provided, inter alia, that the father would have primary physical custody, with the mother to spend time with the children pursuant to a fixed access schedule. Just over a year later, in response to the mother’s application to modify her access schedule, the father filed a number of petitions, including a petition to modify the custody arrangement so that he would have sole legal custody of the children.
Melody M. v. Robert M.: Considering Change of Circumstances in Joint Custody
The Third Department upheld the Family Court’s determination that there was a sufficient change of circumstances to support the conclusion that joint custody was no longer a viable option. In doing so, the Third Department noted that there was a significant deterioration of the parties’ relationship to warrant a change of custody and that the mother did not dispute such change in circumstances.
In upholding the determination of the Family Court that the children’s best interests would consequently be served by a change of legal custody to the father, the appellate court cited the finding of the Family Court that the mother—who was acknowledged to have mental health issues and was in counselling—had engaged in a “pattern of inappropriate behavior” which had a detrimental effect on the parties’ oldest child. Among the behaviors cited by the appellate court were that the mother (1) testified that she frequently called the father to take the oldest child away during her parenting time because she could not deal with his behavior; (2) conceded swearing and yelling at the oldest child, “often resorting to physical means to deal with him”; and (3) and did not participate in the child’s counselling because she didn’t like the therapist or agree with the recommendation that the child needed structure and should follow the same routine in the mother’s household as in the father’s household.
Most interesting, however, was the final behavior noted in the appellate court’s decision. Citing findings by the Family Court, the Third Department noted that the mother “utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an ‘asshole,’” further noting that the mother testified that she believed that “it was important for her Facebook friends to know this.” Based in part upon this behavior—as well as upon the mother’s use of physical force against the oldest child—the appellate court also upheld the Family Court’s issuance of an order of protection against the mother, prohibiting her from, inter alia, posting any communications to or about the children (not just the oldest child) on any social network site. In upholding the order of protection, the appellate court found that “there was sufficient evidence regarding the mother’s inappropriate use of the Internet to demean and disparage the oldest child, as well as her lack of remorse or insight into the inappropriateness of such behavior, so as to justify the court’s issuance of the order of protection.”
Role of Negative Social Media Postings in Custody Litigation
It is to be hoped that the fact pattern set forth in Melody M. is far out of the norm, and that there are not many cases in existence in which a parent’s “inappropriate” postings on a social network site could form a basis not only for a change of custody, but also for the issuance of an order of protection. Nonetheless, the facts (and outcome) of this case should serve as yet another warning about the potential pitfalls lurking in posting to social network sites, particularly where children are concerned.
It is not particularly surprising that postings which expressly “insult and demean” a child and engage in derogatory name-calling could lead to a negative outcome in a parent’s custody matter. However, the extent of the attention paid to the Facebook postings in Melody M. begs the question of how courts would view even less inflammatory material. For example, what if a parent posts a child’s report card, with comments about the child’s performance which might be seen as overly critical and perhaps somewhat derogatory? Or posts pictures of and/or comments about a new romantic relationship with a partner who might be viewed as a potential negative or harmful influence on the children? In a close case, in which a court must award sole custody to one parent or the other, might such a lapse in judgment be sufficient to tip the scales toward the non-posting parent? The decision in Melody M. cautions us that it is imperative to remind clients to think twice before sharing—with, effectively, the world—thoughts or images which could directly or indirectly impact a child.
Leigh Baseheart Kahn is a family law attorney and Super Lawyer with Mayerson Abramowitz & Kahn, LLP. Leigh is a member of the New York State Bar Association, Family Law Section, and of the Association of the Bar of the City of New York.
Requesting the opposing party’s social media content in the course of discovery has become commonplace. However, the practice of effectively obtaining, reviewing, and presenting social media evidence often falls short.