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Facebook as a Source of Evidence in Family Law: Part 3

Facebook as a Source of Evidence in Family Law: Part 3 — Even More about Facebook in Family Law Cases

In our previous Blogs Facebook as a Source of Evidence In Family Law: Part 1 and Facebook as a Source of Evidence in Family Law: Part 2 – More About Facebook in Family Cases , we discussed the use of Facebook in family law cases, especially in situations where one ex-partner tries to use the other’s Facebook entries and pictures as evidence against them, usually to disparage them in connection with child custody and access disputes.

Now, in a U.S. case, a Connecticut judge has ordered that a divorcing couple exchange passwords for their respecting Facebook accounts, and for any dating websites on which they were active members.

The unusual September 2011 ruling was part of the divorce trial of Stephen and Courtney Gallion, which included a custody dispute over the couple’s children.     The husband was asking the court to award him full custody.

The password exchange was ordered by the court after the parties’ lawyers argued that mutual unrestricted access could provide evidence which could be used in the parties’ custody matter.    The order was framed as part of the customary obligation on litigants to relinquish any “responsive material” to the other, and was extended in this case to encompass access to the social networking sites.   More to the point, the husband hoped that by having access to the wife’s Facebook, MySpace, Match.com and EHarmony accounts, he would be able to collect evidence that she was not the appropriate custodial parent for the children.

The judge imposed certain stipulations, specifically that the password exchange should be carried out only by the parties’ lawyers, and that neither spouse may post messages to Facebook or the dating sites in the guise of or purporting to be the other spouse.  They were also prohibited from deleting any posts or messages from their own sites.

The judge’s order – which does not yet appear to have a counterpart amongst Canadian judgments – raises interesting non-family-law related questions such as:

1) whether it violates the terms of service of social networking sites (which prohibits the sharing of passwords); and

2) whether the order allows for violation of privacy because it gives each spouse unfettered access to private information such as the other’s “friends” list.

Nonetheless, it is an interesting development in the ever-expanding realm of family cases that involve Facebook and other social networking sites.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders.  For more information, visit us at  www.RussellAlexander.com