March 09, 2013
Family Law Judge Discounts Tweets That Threatened Children and Discussed Alcohol Use – R.M. v. D.Z.
[Post by Venkat Balasubramani]
R.M. v. D.Z., 2013 IL App (3d) 120846-U (Mar. 4, 2013) [pdf]
We’ve seen countless examples of litigants zinged by their social media posts. A family law judge recently took a different approach, giving minimal weight to tweets from a family member that threatened harm to kids and talked about drinking with one of the parents.
DZ and RM were married; they had twins and ultimately separated. RM was awarded primary custody. RM and the twins resided for some time with DZ (after the marriage). Later, RM and the twins moved out and moved into a residence where RM’s 17 year old daughter from another marriage allegedly resided. DZ argued that the parenting plan and custody should be modified due to the changed circumstances. Among other things, DZ cited the 17 year old daughter’s alleged drug use and tweets from the daughter that threatened the kids and recounted drinking with the mother (RM):
I'm going fucking insane I hope these little fuckers have school tomorrow or I will probably kill them ... my brothers are such ungrateful pricks I hate disrespectful little cretins.'
drinking with my mom … now I know why I only drink wine
drinking Bailey’s with my mama
I love drinking with my mom LMFAO.
The trial court concludes that RM only resided with her 17 year old daughter, if at all, temporarily. The court also finds that RM did not have knowledge of her daughter’s drug use. Based on this, the court says that there is no change in circumstances that warrant a modification of the initial custody/parenting plan.
Interestingly, the court ends up discounting the daughter’s tweets almost entirely, saying that:
it's become apparent to the court after hearing many of these types of cases now that young people don't put the normal every day occurrences of life on their Twitter account postings. *** And trying to rely upon Twitter account postings or MySpace or Facebook as proof of facts, actually things that have happened, just can't be done -- especially with young people.
The appeals court declines to reverse, saying that the trial court—being in “the best position to observe the conduct and demeanor of the parties and the witnesses and ha[ving] a degree of familiarity with the evidence that a reviewing court cannot possibly obtain”—is entitled to deference.
As we’ve blogged on numerous occasions, courts ruling on defamation claims often discount seemingly fact-like statements made online. Although this is not a defamation case, the court has the same view of the tweets the father cited--basically, though they looked like facts, we can't assume they are meant as facts. It’s unclear whether the court here relied on the medium, the context, or the age of the individual who wrote the posts in question.. In either event, this is another example of courts taking into account the hyperbolic nature of online posts.
Interestingly, the court goes to the other extreme, and discounts the tweets entirely, not even according them minimal probative value. The court's treatment of the events discussed in the tweets as "not real facts" is questionable, and the appeals court's affirmance also reflects a degree of online exceptionalism. If the statements in question came in the form of in-court testimony, you would think the result may have been different.
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[image credit: Kzenon/Shutterstock ("Young people in club or bar drinking cocktails and having fun")]
Posted by Venkat at March 9, 2013 08:12 AM | Evidence/Discovery