Pacheco Perez P.A.

Couple ordered to exchange Facebook passwords in custody matter

Once again, Facebook strikes in a family law matter.

This time it's in a child custody dispute, with a Connecticut judge ordering a couple to exchange the passwords to the social networking sites they visit.

The trend is clear, and thoughtful people will note well its emergence and heed this message, which it delivers with striking clarity: Be careful about your personal information that is accessible to others via computer, because it is increasingly likely that it will surface in any legal matter involving you.

"I see the information people can get from computers, in lawsuits and through hacking," says one of the attorneys involved in the Connecticut case. "They scare the hell out of me."

In that case, a husband says that he became concerned about his wife's suitability for full custody of the couple's children after he saw troubling information on a home computer the couple shared. His concern eventually came before the judge in the couple's divorce case, who ordered the password exchange, issued an injunction that the wife not delete any material and also set forth other restrictions.

The attorneys are now conducting discovery on the material appearing in the networking sites. One expert in this area notes that discovery standards for social networking accounts are unfolding differently than in "normal" discovery, where the material a party is asked to turn over must have some relevance to the inquiry and be responsive to it. Judges in a number of cases involving computer discovery have applied broader standards than that, essentially making all material accessible. In some cases, the judges themselves sign into a party's account and search for evidence.

Facebook's terms of service state that a user cannot provide his or her password to another party. Clearly, the judge in the Connecticut case did not feel bound by that restriction.

Source: Forbes, "Judge orders divorcing couple to swap Facebook and dating site passwords" Nov. 7, 2011

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