Who is a Parent?

Who is a parent?  That question has been defined, albeit poorly, in New York jurisprudence for last twenty-five years as a person with either an adoptive or biological connection with a child.  This narrow and limited scope of the definition of parent has just been changed by the Court of Appeals in the landmark decision this week in the companion cases of In the Matter of Brooke S.B. v. Elizabeth A. C.C. and In the Matter of Estrellita A. v. Jennifer L.D. (Click Here to Read Decision)

For the first time, New York can now grant a non-adoptive, non-biological partner, who shows by clear and convincing evidence that both parties agreed to conceive a child and to raise the child together, the legal status of parent.  This will then allow that non-adoptive, non-biological partner, who has been active in establishing a relationship with child the opportunity and right to seek custody and/or visitation with the child upon an unfortunate breakup of the relationship with the biological or adoptive partner.

This remarkably overdue and groundbreaking decision was sorely needed in today’s ever growing landscape of non-traditional families in Long Island and New York State.  This ruling brings New York, a state with a large LGBTQ population, in line with many states across the country, including several conservative states like Oklahoma and South Carolina that already permit non-adoptive, non-biological parents to ask for custody and visitation rights.   As a result of the outdated definition of parent, many peculiar decisions have been handed down, demonstrating a fundamental and disproportionate unfairness to those families headed by same-sex couples, unmarried opposite-sex couples and stepparents.

For example, under the old rule a non-adoptive, non-biological “parent” would be liable for child support for the child but not be entitled to enforce custody or visitation rights for the same child.  The fact that visitation for the non-adoptive, non-biological “parent” might be in the best interests of the child was non-determinative because the non-adoptive, non-biological “parent” would not have standing to enforce visitation in the first place.

Obviously such a dichotomy of justice is untenable and was foreshadowed in the extraordinary dissent by Judge Judith Kaye in the original, and now overturned, 1991 Court of Appeals decision in In the Matter of Alison D. v Virginia M, 77 NY2d 651 (1991).  (Link to Decision here: https://www.law.cornell.edu/nyctap/I91_0072.htm).  The forward looking Judge Kaye observed then, at a time when same-sex couples could not marry or a biological parent’s unmarried partner adopt the child that such a narrow and harsh rule would cause a great hardship to a specific and growing number of families.

One crucially important caveat is that the decision is limited to partners who enter into a pre-conception agreement to have and raise a child together.  The Court left open the proper test for standing for custody and visitation for those partners who consent to the creation of a parent-like relationship after conception of the child.  However, it is likely that future cases will now proceed along the same vein of reasoning as this decision.

While the ruling is certainly a major victory for LGBT families across Long Island and New York, it is also a victory for thousands of non-adoptive and non-biological heterosexual parents as well.  These families will now be able to have standing to seek custody and visitation with children that they have raised and established a loving relationship with despite the fact that they are not biological or adoptive parents.  Truly, for the first time, the best interests of the child can prevail.

Social Media in a Divorce Case

Today’s culture is driven through social media.  Each day billions of posts travel through the Internet via social media outlets such as Facebook, Twitter, Snapchat, and LinkedIn, among others.  People are connected in ways that they never were before.  However, all of this sharing of the details of an individual’s personal life can come back to haunt them in a divorce.

It is estimated that up to two-thirds of attorneys already use Facebook and other social media outlets to gather information in divorce and family law cases, and that number is only likely to grow as the popularity and use of social media continues to increase.  There is a treasure trove of information that an individual posts on the Internet that is generally freely accessible to attorneys and easily documentable for use in Court.

When a person claims they cannot see their children due to a “business trip” they can be betrayed when their Facebook posts document that they are actually on vacation.  It is very difficult to “walk back” something you have posted on social media.

While certain items that can be useful for matrimonial attorneys are fairly obvious, such as photos of a cheating spouse with another person or threatening and harassing posts made by one spouse on the other’s page, there are many other applications that may not seem as self-evident.  For example, the information in someone’s LinkedIn account about salary or bonuses may be used to impute income with regard to child support and maintenance.  Looking at a person’s “connections” can lead to finding a list of customers for someone who is self-employed, which can potentially obtain material to verify a new worth statement or other financial records.

But it is not only your social media accounts that could lead to relevant information.  Pictures or comments you post onto someone else’s Facebook page can also be very harmful and problematic for you in Family Proceedings.

Service of process can now be made through social media under very unique circumstances.  A New York court has permitted service to be rendered via Facebook.  In that case, the only means of contact with an estranged spouse was via Facebook, as they were unable to track the individual down using other methods.  So the judge allowed service of the Summons to be rendered via a Facebook message, which acts as a cross between email and instant messaging.

A spouse might believe they can get away with deleting their accounts, but that does not always make all of the posts “disappear”.  The old adage regarding the Internet is often very true: anything you put on the Internet will stay their forever.  The first potential issue comes from whether your account is actually deleted or just “suspended.”  Facebook allows a user to suspend their account instead of deleting it.  The information on the old posts remains and can be reestablished at any time.  Also any posts that were made on another user’s page may remain throughout the suspended status.  In addition, there are other ways of accessing information on the Internet in regards to old posts.  Often these posts, especially photos and videos, are lifted by other websites or individuals and can be accessed via Google or other search engines.  In fact, there are entire websites specializing in “background searches” that compile this information on people only to sell it back to them or to others.

But what about online privacy, you ask?  Don’t divorcing parties have an expectation of privacy regarding their online posts?  The Court’s answer has been generally “no.”  The rules regarding these issues are evolving and while some Courts have stated that there is an expectation of privacy in a person’s password to access social media accounts, most Courts have stated that there is no expectation of privacy in the posts themselves.  Thus, as long as the information is accessed legally and could be accessed by anyone, it is all fair game for use in a marital proceeding.

The key is to use social media correctly with knowledge that less is more when it comes to posting online and that NOTHING is ever gone or deleted forever.

 

“Social Media in a Divorce Case” was written by Michael B. Schulman, Managing Attorney.