As June and the front half of the year grind to a close, it is the perfect time to do a couple things which could save you a LOT of legal fees in the next 12 months.  Perhaps not, but it is worth the effort and is an effective piece of evidence in court even if you fail.

  1. Download the school calendar for 2018-2019. They are done now.
  2. On a blank calendar record the school holidays and “breaks”.
  3. On the same calendar put in the custody schedule now in effect including holidays.

While you are doing that, note when the conflicts arise.  School breaks and holidays can wreak havoc with otherwise sensible custody schedules.  Where you see havoc, think about if weekend switches or other alternatives can lessen the pain and then send over those solutions to the other parent.

I would not recommend the second step be merged with the first.  But, once you launch the calendar dispute missive, it is time to start a discussion with your kids about the activities coming up.  The available menu of kid activities today is pretty much limitless.  In addition to what they want to do (everything), we have the matter of what parents think they should be doing.  This is an especial set of problems where fathers intersect with sports.  Dads seem to assume that their offspring just naturally want to play the same sports they did. That works for a while as kids see this as a great way to connect with a parent. But kids have a tough time telling a parent that their love of baseball or curling has subsided and that they would like to try golf or less competitive things like rock climbing. Summer affords vacation and other times when a parent can have a lengthy heart to heart talk with a child about what he/she wants to do or be. The key then is to help the child communicate any change of heart to the parent who assumes that he will play baseball until the first pro contract is signed.  Not easy, especially when a child senses that he or she will disappoint a parent.  Still, much easier to address now rather than after the sign ups have been completed, Dad buys the new Marucci bat for $300 and has signed up as assistant coach.

Yes, July is all about fireworks.  But, perhaps best to have them now rather than a month from now when most of the fall activities start in full gear.

On June 19, 2018, the Pennsylvania Supreme Court, in an Opinion that could be described as unanimous, ruled that the trial court was correct when it decided that it could deviate from presumptive minimum guidelines in a high-end child support case. The case has been floating about for quite some time. We wrote about the Superior Court decision back on December 7, 2016 and we provided the incomes the Delaware County Court had to look at:

Mom Dad
2009 184,000 4,000,000
2010 139,000 1,100,000
2011 145,000 2,300,000
2012 105,000 15,500,000

The case arises from a property settlement agreement which stated that the parties would exchange tax returns and calculate child support annually based on respective net income “and Pennsylvania guidelines, provided,…either party may apply to the court to adjust child support…based on relevant factors.” Those last few words may have made a world of difference because if the sentence ended without reference to “relevant factors”, the obligor may have been stuck with the presumptive minimum contained in the guidelines. Recall that the right to support as a matter of contract in a divorce setting may yield a far different result than one decided in support court.

One cannot fault the majority opinion of Justice Baer, which is itself, lauded by the concurring opinion of Justice Wecht. The line of reasoning is fairly clear. Child support guidelines are premised upon economic studies of child needs. However, as income climbs higher and higher, needs become less easily calculated. When it adopted “guidelines” for families netting more than $30,000 a month, the Court merely extrapolated and largely speculated about those needs. So, even though there is a guideline amount and that guideline amount in Hanrahan, produced a support order in the range of $60,000 a month, the parties should have the right to make a record about the specific needs of such families and dip into the evidentiary well known as “lifestyle.”

What concerns this writer is, just what is a trial court to do with this “lifestyle” question and just how far does the evidence go? Needless to say, the law seems quite clear that if I make $7,500 a month and my ex brings down $2,500, my “lifestyle” testimony is not going to get very far. I have to fit my lifestyle around the guidelines, and unless my kids have some very unusual needs, their “lifestyle” is not going to get any more consideration than mine or that of the prodigal mother.

But once the income balloon ascends above 30,000 feet, the door of Melzer v. Witsberger appears to spring open despite the language of Mascaro v. Mascaro. This means inquiries into “lifestyle” and that is a pit, which has no bottom. The facts in Hanrahan illustrate the point. Look at Mr. Hanrahan’s income. A million or two a year invites travel on timeshare jets or acquisition of a reasonably fancy Cessna. Get to four million in income and now a Learjet 35 falls into play. As I reach the million a month club, I have arrived in Gulfstream territory although my plane will probably be an older model and I may not be able to lug around more than seven friends and family.

Are judges supposed to hear this? Moreover, what wisdom can their life experience impart when the pinnacle of their lifestyle is an upgrade to first class on a scheduled commercial airline? At what level of income do we abandon commercial aviation or propeller driven transportation in favor of jet aircraft? In addition, what do we do in instances where the income is a one off; e.g., a lottery win or sale of a business, or the magnificent income is not sustained. Once children have gone “private”, can we ask them to downgrade back to commercial aviation?

I have participated in these trials and suffice to say, after a few hours they become tedious. The obligors love to wax on about how frugal they can be and “in touch” with their humble beginnings, whether real or imagined. Obligees remember seeing Parsifal from the box seats at the Bayreuth Festspielhaus and knocking back glasses of Krug Clos du Mesnil at intermission with the Obligor before the champagne and the marriage soured. The judge has to listen to how much the fourteen year old adores Wagner and the “Ring Cycle” while the judge wonders whether the “ring cycle” is a setting on the Whirlpool in his laundry room.

Reason tells us that $2,000 a day is a lot of child support. The Supreme Court was right to say that in settings such as this, expenses do matter. But, in communications I have had with lawyers who lived through the days of Melzer, there is fear that unless someone limits the “needs” and “expense” testimony, we will have courts hearing days of testimony. Taxpayers in a setting will underwrite the judicial time where this obligor’s 2012 daily income rivaled the annual household income of the mean Pennsylvania household. That is not good for anyone, except perhaps the lawyers asking whether little Rachel eschews cotton as she has grown used to cashmere.

Hanrahan v. Bakker 19 MAP 2017   [J-82-2017]   6/19/2018

The Hollywood gossip this week revolves around an Order issued in California in the custody dispute between actors Brad Pitt and Angelina Jolie. That Order outlined a summer custody schedule for the six children while maintaining primary custody with Jolie. But the Court issued stern warning to the Mother stating that: “If the minor children remain closed down to their Father….it may result in a reduction of the time they spend with {Mother} and may result in the Court ordering primary physical custody to {Father}.

The children range in age from 9-16. These can be tempestuous times for even the best of intact families as it is when children really develop their own expressed personalities. In a divorce setting it is also common for one or more to ally with one parent and reject the other as unworthy of any respect, love or attention.

Sometimes that enmity is earned. Growing children can be quick to “judge” a parent’s conduct and expose any inconsistency.  Not all parents are exemplary characters and people are not at their best when a marriage is dissolving. But then there are instances where dislike for another parent is given a little nudge if not a firm push by the “favored” parent of the day.  It often begins at separation with the gentle suggestion that “Mommy left us.” or “Daddy likes another family better.”

Parental Alienation Syndrome is a term coined by a New York psychiatrist, Richard Gardener in the early 1980’s.  He termed it a “disorder”  manifested by a campaign to denigrate the other parent. The action can be deliberate or unconscious.  It can range from subtle hints about the other parent’s inadequacies or rise to suggestions to a child that his/her parent may have physically abused the child.

The psychological community has never embraced this condition as a disorder although that subject is much debated.  In its mildest form, the child is resistant to talk on the phone or visit with the bad parent. The child will often freely opine on the bad parent’s character or conduct.  A tip off that the views are not independently formed by the child is that the language expressed by the affected child is not typical for someone that age  (“Mommy drinks too much alcohol”) or contains conclusions that young children cannot evaluate (“Daddy passed out” in contrast to “went to sleep”).

A common method of teasing out this kind of alienation is to interview the child about what he or she likes and dislikes about the parents.  An alienated child is often hard pressed to describe any meritorious conduct on the part of the parent from whom he is alienated.  Or, the child will dismiss it with a platitude (“I know he loves me” without more). An alienating parent often is described by the same child as faultless.

Although not an accepted disorder, anyone who has been in the presence of a child who is fully alienated from a parent knows how challenging those interactions can be. Typically, the child is sullen, argumentative or silent. They will recoil from physical contact, even when it is intended to express warmth and kindness. These children often will not permit anyone to try to persuade them that all parents have merits and deficits. One parent is good, the other is not.

The remedies for this condition are limited and extreme.  Most courts will order the child into therapy to make certain that the enmity is not fact based, but once that hurdle is passed the therapist has a daunting task.  The child does not want to view the alienated parent as having merit.  And, the therapist has but 45 minutes to work on correcting the matter while the parent promoting alienation has the rest of the week to reinforce negative thoughts.  Note again that some parents don’t even appreciate the toxicity of their conduct.  When confronted with the problems associated with using phrases like “Daddy left us” a mother may respond that the phrase is not one of judgment, but of fact.  We live in an age when people think it is appropriate to be “brutally honest” even though children don’t have coping mechanisms to address the brutality.  “My father is a bad man so the judge sent him to prison.”  “My mother likes to sleep around.”  A 16 year old child is old enough to understand infidelity.  Nine year olds would assume that mom must have a job that requires overnight travel.

In the Jolie-Pitt matter, the signals are clear. This judge is quite concerned that mother is over regulating conduct with father and insisting on unrestricted phone access. That, too, is easier said than done as parents can often send very strong ques that a call needs to end or be avoided.  In this case, the Court is also signaling that unless these children are able to form a more positive relationship with Mr. Pitt, the judge may go so far as to award primary custody of the children to their father. This is the nuclear option and Courts are chary to employ it because there is always concern that (a) the alienated parent is now in exclusive control should there be something bad going on, and, (b) the child might run away permanently.

There is no easy solution and this case is further complicated by the fact that the Children will be with one parent in California and another in England.  Physical distance makes it all the more difficult to break down or at least slowly dismantle studied antipathy toward a parent.

The late Supreme Court Justice Potter Stewart is credited with saying that while obscenity could not be defined: “I know it when I see it.”  This is equally true for parental alienation. The scientific and medical communities have not accepted it because, unlike depression or bipolar disorder, it escapes definition.  But, almost any judicial person deciding custody cases will confess that they know it exists because they have heard it from the lips of parents and children.  When people separate, they want their children to like them “better”.   It is only natural.  But it is far less clear whether a child’s dislike of a parent is fact based or the product of undue influence.

Pennsylvania uses the standard “the best interests of the child” when determining custody issues. What happens if the best interest of the child breaks the law? Such is the case in Georgia where parents of a 15 year old boy suffering from epilepsy resorted to marijuana to treat his seizures. Their argument is compelling: their son suffers from debilitating seizures that have not responded to traditional treatment and medical help is forty-five minutes away from them. They feared his seizures would eventually kill him.

Having seemingly exhausted their medical options (including a legal form of marijuana oil in a capsule), they began having their son smoke marijuana. His seizures stopped. However, the state of Georgia’s child welfare agency, acting on a tip, investigated the family and removed the young man from his parents’ care in April. Having gone nearly 70 days without a seizure, on the day he was removed from his home he was hospitalized for a severe seizure. He is in a group home and reports did not mention whether he continued to have seizures, but presumably he has and those facts will emerge later this month when a hearing is held.

Pennsylvania passed medical marijuana legislation in 2016, including provisions that address the use by minors as administrated by designated caregivers. That said, marijuana is still a Schedule I drug under the Controlled Substances Act with state and federal criminal ramifications. The Georgia case highlights a possibility that still exists in Pennsylvania where conflicting state and federal laws can result in criminal charges.

How would the court react to the “legal use” of marijuana by a custodial parent or an objection by a parent to the use by a minor child? Pennsylvania updated their Health and Safety Statute (§10231.2013) to include a prohibition against including medical marijuana as a consideration in a custody proceeding, but nothing was done to amend the custody code to make a similar restriction under the custody factors.

Most likely, the courts of Pennsylvania will continue to apply the custody factors to medical marijuana in a manner comparable to prescribed pain medication with an emphasis as to whether it is being abused or affecting the custodial parent’s ability to care for the child. The use by a child would be dictated by legal custody considerations and medical necessity not unlike any other treatment. Despite evolving laws in this area, there will continue to be a tension between state application and federal law. While that may not change any time soon, addressing those disparities at the state level should improve as time passes.

More information on cannabis, especially the business side, can be found at Fox Rothschild’s blog “In the Weeds.”

It happens every day throughout the Commonwealth.  It is support contempt court and the crowd is large and anxious.

On Valentine’s Day, 2017 a contempt hearing was scheduled with the petitioner being the grandmother of two young children, and the respondent, her daughter.  The daughter was supposed to pay $108 in support and $30 on arrears.

As often occurs at these contempt hearings, a deal was struck and placed in writing.  The agreement was admitted contempt but no incarceration provided that all payments were made on a timely basis.  If that condition was breached, the contemnor would be incarcerated for six months.

Appellant then appealed from her own agreed order contending that the remedy she agreed to was not one that conformed to Pa.R.C.P. 1910.25-5(a)-(c).  Many lawyers would agree with this author that you can’t appeal an agreed order.  But, we would be wrong.  In an opinion published May 8, 2018 a panel of the Superior Court vacated the order because it did not conform to 23 Pa. C.S. 4345 and sent the case back for a new hearing.  Parties cannot agree to an illegal sentence. Com. v. Gentry, 101 A.3d 813, 819 (Pa. Super. 2014)

Writing for the Court, Judge Shogan borrows from criminal law in stating that a suspended sentence is “illegal” Com. v. Joseph, 848 A. 2d 934, 941 (Pa. Super, 2004).  Contempt is not about future payments.  It is focused on the present ability to pay.  If the Respondent has it, incarceration is a remedy but it must be administered with a purge condition that the Court finds can be met.  The agreed order did not specify a purge amount and failed to outline a mechanism by which a determination could be made about the future ability to pay.  In other words, each time the keys to jail are brandished in contempt court, the court needs to assess what the Respondent can pay then; not at some unspecified later time.

The burdens in contempt shift more often than the tides.  The Petitioner has the burden to prove notice and noncompliance with the order.  Present inability to comply is a defense where the burden falls on the Respondent.  Barrett v. Barrett, 368 A>2d 616 (Pa. 1977).  But, if incarceration is the remedy, the Court must find beyond a reasonable doubt that the contemnor has the present ability to comply. Id., Muraco v. Pitulski, 368 A.2d 624 (Pa.S. 1977); Kramer v. Kelly, 401 A.2d 799 (Pa.S. 1979)

Thompson v. Thompson, 2018 Pa. Super. 122 (5/8/18)

In a published decision reported on March 15, 2018, the Superior Court has addressed what it takes, at least in a criminal setting, to tie a Facebook posting to a defendant charged with a serious crime.

Tyler Mangel and Matthew Craft were charged with assault in Erie County.  In the course of the prosecution, the Commonwealth filed to secure Facebook subscriber information.  That motion was granted and at trial, the prosecution filed a motion to introduce information obtained from Facebook, which it saw as probative of guilt.  The evidence consisted of screenshots and mobile device “chats.”

When the police officer testifying about the investigation was asked what clues found in the chats could be traced to Defendant Mangel’s Facebook account, the defense counsel objected. The Trial Judge then posed this question to the witness asking whether the officer, with a reasonable degree of certainty could testify that the Defendant published these electronic statements.  When the witness testified that the account was registered in the Defendant’s name, the Court sustained the objection on the basis that ownership of a social media account could not be equated with responsibility for all publications made on that account.  The Commonwealth appealed.

Defense counsel ably created “issues” for the prosecution.  The investigating officer did not secure an IP address for the account she was testifying about.  This would have provided background about the computer, network and location of the computer at the time of the post.

Mangel is not the first foray into this evidentiary minefield.  Instant messages and cell phone text communications were the subject of In the Interest of F.P. a minor, 878 A.2d 91,96 (Pa. Super. 2005).  In October 2011, we wrote about Com. v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) aff’d 39 A.3d 705(Pa. 2014).  In 2016, the Third Circuit ruled that Facebook authentication required a preponderance of evidence.  United States v. Browne, 834 F.3d 403 (3d Cir. 2016).

Judge Stevens sum up the problems of authentication as the same with all electronic media; “anybody with the right password” can become someone they are not and send messages pretending to be the account holder. The proponent of social media has the burden to corroborate the message with the alleged messenger, by either direct admission or contextual clues confirming the identity of the sender.  In support of this need for “supporting evidence” aside from mere ownership of the account, the Court referred to U.S. v. Vayner, 769 F.3d 125,131 (2nd Cir. 2014); U.S. v. Jackson 208 F.3d 633,636 (7th Cir. 2000); Griffin v. State 19 A.3d 415,423 (Md. 2011); Com. v. Purdy, 945 N.E.2d 372, 381 (Mass. 2011); Smith v. State, 136 So. 3d 424, 434 (Miss. 2014); and, Deering v. State, 465 S.W. 3d 668, 672 (Tex 2015).

In this case, the defendant did not admit the Facebook account was his or admit to making the posts.  The fact that the name, hometown, school district and photos posted seemed to correspond to the Defendant was insufficient.  The fact that there was another Facebook account for “Tyler Mangel” in the Defendant’s hometown only added to the certainty of keeping the electronic evidence away from the jury and showed that the police were wrong in offering that there was only one person with such an account in the Defendant’s hometown.  The timing of the postings was also missing from the record.  Moreover, there was nothing distinctive about the posts, which would suggest the “signature” of Mr. Mangel, the Defendant.

This is a criminal case and one may argue that a civil case might be decided differently.  But the Rules of Evidence governing authentication do not vary from criminal to civil, meaning that electronic evidence needs to be considered more carefully than trial lawyers might otherwise want to think.

A recent case published by the Superior Court gives us some insight into one issue which has thus far evaded appellate review and affirms in principle that alimony remains a secondary remedy and one which is awarded based upon need.

Core facts are:

Husband: 61

Wife: 56

Both employed in health care industry.

Husband’s net: $16,000

Wife’s net: $10,400

(60/40)

25 year marriage

Wife received support $2,200 in support since 2012.

Court awarded 55/45 split in favor of Wife.  The gross estate is $7,000,000+ pensions.

Wife asserted that Husband had dissipated $4.4 million of property on an extramarital relationship.  She appealed claiming the award did not give sufficient consideration to that fact.  The Trial Court opinion acknowledged expenditures outside the purposes of the marriage but concluded, “It is not the role of the Court to recoup expenditures made during the marriage by one party that the other party does not know about or does not agree with or to make a party whole again.”  It then added that in effecting an equitable distribution “considerable consideration” to contributions to creation of and dissipation of assets.

It appears that the Trial Court made its distribution with a blanket statement that it had “reviewed all the factors.”  The Superior Court concludes that the Trial Court carefully examined the distribution factors and that Wife’s lack of specificity on this issue was dismissed as waived.

On the $4.4 million dissipation issue, Wife presented a list of purchases and expenditures which she considered a dissipation as the month was spent for the benefit of an adulterous relationship.  As noted, the Court found that its role is not recoupment of dissipated assets but distribution of what remained.  It was sufficient that the Trial Court “considered” monies used by husband during the course of the marriage.  Hopefully this meant the monies “misused” during the marriage but that is not the word employed.

Another issue was that of whether alimony was appropriate.  The Trial Court had denied it stating that the expenses presented were not reasonable and, even if credited, did not exceed Wife’s income supplemented by the equitable distribution award.  The Superior Court, quoting Teodorski v. Teodorski noted that, “Alimony is based upon reasonable needs in accordance with the lifestyle and standard of living established by the parties during the marriage as well as the Payor’s ability to pay.  Moreover, alimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of appropriate employable skill.”

The alimony language is interesting to see in a day when alimony appears to be more guideline than needs driven.  The language about the merit of preparing and presenting a dissipation case must be disheartening to many.  It appears that while there was a lot of “evidence” presented about dissipation, the Trial Court skated by stating that it heard and considered that evidence but had no responsibility to keep score or formally evaluate the dissipation claim in an economic sense.  Those who come to attorneys with stacks of evidence of funds spent on non-marital relationships will need to be warned that such a presentation will be certain in cost but not in outcome.  We don’t know how much of the $4.4 million in dissipation claims were solidly established.  What we do know is that in a 25 year marriage where the parties depart with husband having a 3:2 advantage in net income, the equitable distribution advantage to wife was roughly $350,000.

In February 2018 we wrote about a recent New York appellate case making clear that those who post information about themselves on Facebook are going to have a difficult time asserting that the posting is private and not subject to scrutiny in subsequent judicial proceedings. This is especially true where the content of the posting can be tied to the litigation. In that case, a Facebook posting was found to be discoverable in a personal injury case.

That was New York in February and the law of New York does not necessarily apply in its sister state of Pennsylvania.  But, just as the highest court in New York was grappling with Facebook postings, a trial court judge in Monroe County, Pennsylvania (think Poconos) was deciding a very similar kind of case.

Kelter v. Flanagan is a personal injury case arising out of an auto collision.  In pre-trial discovery, the defendant made a demand upon the Plaintiff to preserve and produce communications the plaintiff had on Instagram after the collision occurred.

In a deposition, the plaintiff professed not to have social media accounts.  The defendant’s counsel was instantly able to show that fact to be untrue as the attorney possessed postings published by plaintiff on a public Instagram account.  Instagram has both public and private access options.  When the defendant pressed for access to private messages, the plaintiff sought protection from that stating that she had produced all of her public access messages.  Alas, the court found that Instagram allows its customers to toggle between public and private and that one cannot use a change of account status as a defense to production of this information.

The defendant’s goal in this case is to secure evidence of activities which belie the claim of injury or mitigate the extent of it. As Judge David Williamson aptly notes, pre-trial discovery is intended to allow the parties to explore any evidence that makes the existence of a fact more or less probable.   Pa. Rule of Evidence 401.  Communication on any social media platform is a statement, and, if that statement helps a court to assess what caused an event or what impact the event had upon the person experiencing it, chances are strong that claims of privacy will yield to a judicially sponsored search for truth.

In this case, the remedy was quite broad.  The Plaintiff was directed to provide her log-in information.  Lord knows, what will be behind that door.  Under the rules of evidence only relevant facts are to be brought to the courtroom, but under this ruling the counsel for the defendant may get to see a lot of personal material the plaintiff never dreamed would be available to strangers.  Attorneys viewing these communications could themselves be liable for unnecessary publication of private information in an invasion of privacy action if they circulated embarrassing data not directly relevant to the case.  But, no doubt, rulings like this may produce some scandalous material and some testy arguments over whether embarrassing information is relevant to the action before the court.

This is a personal injury case, but the ruling, while not precedential, has merit in a family law setting as well.  So beware of what you write or post because unlike oral communication, Instagram might be forever, or just long enough to expose you.

 

My colleague, Mark Ashton, was recently quoted in Mr. Ken Belson’s New York Times article addressing a Pittsburgh custody case grappling with whether a child should play football after having had three concussions before his 16th birthday. As Mark points out in the article, custody officers are unwilling to touch an issue such as contact sport participation because no one wants to be the one who provides the opportunity for a child to be hurt. I think another reason why custody officers are unwilling to deal with such an issue is a little more esoteric: how does one gauge whether one sport is better for a child than another?

Mark also wrote a blog post last July raising the issue of football as the new battleground for legal custody issues. Parents seem to be increasingly concerned about the injury potential of concussions suffered in football and the “time value” of football compared to other sports. Having played over ten years of football, I disagree with using the time value analysis to consider the benefits of football. Football is notoriously known as only being “played” for a sliver of time relative to the game clock. The “conditioning affect” of football cannot be measured that way and it leaves out the intangible aspects the sport develops such as leadership, perseverance, physical and mental discipline, and playing a team sport which relies on each individual to perform their role to the best of their ability every single play. It is an amazing sport. It is an evolving sport. As this Pittsburgh case shows, even for those who love the sport, it is not for everyone.

Which brings us back to the Times article and what some might consider a “war” on football. The concerns and raised awareness about concussions in children is no more an attack on the sport than seat belts are an attack on driving. This issue is fundamentally a health issue, with concussions serving as the context, but which could easily replaced by concerns about a torn ACL or broken leg. Olympic downhill skier Lindsey Vonn has an injury history (including a concussion) that would make an NFL linebacker cringe, but I suspect if skiing replaced football as the activity in question no one would be paying attention to this case.

The quantitative difficulty is that a concussion does not show up the same way a broken bone or torn ligament does on an MRI. If a doctor clears a child to play any sport or activity after they clear a concussion protocol, then seemingly the child is fit to play. There is no evidence to the contrary, nor is there evidence to predict how the next concussion will occur, if at all. Left out of the article are details about the second and third concussions. I would be curious to know whether they were from direct hits or glancing blows. This child’s first concussion was from being hit in the head with an aluminum baseball bat. I wonder whether the second and third were routine plays which might not have otherwise injured him. Concussions affect everyone differently and they can be progressive such that it takes less of an impact to be concussed than it did the previous time(s).

This situation becomes a legal custody issue because it has a direct consequence to the health of the child. The mother’s argument is that football represents a “status quo,” but the father’s counsel argued that the status quo changed once the second and third concussion occurred from football. A temporary ban on the child paying football was overturned and he played his junior year without any injury. The father is now prepared to go to trial for a final order on the issue.

From a legal standpoint, this situation highlights the difficulty of developing bright-line rules for some legal custody issues and why there is little precedential case law on some of these unique issues. This situation is so fact specific that permitting (or barring) participation in football in this case will likely be irrelevant to another case. Nevertheless, it will be interesting to see what the trial court decides and their rationale behind their decision. Though perhaps not binding on other cases, it can be instructive as to whether the court considers the sport or the injury as the critical factor.

New York’s highest court, the Court of Appeals ruled on February 13, 2018 that a Facebook account holder’s designation of a posting as “private” did not preclude a litigant from obtaining copies of those postings where they may be relevant to the litigation.

The ruling comes from a personal injury case where the plaintiff claimed to suffer permanent injury in an equine fall.  The plaintiff’s claims included those typically associated with loss of enjoyment of life. The defendant sought to secure plaintiff’s entire Facebook account. Plaintiff opposed production of any private posting and the intermediate appellate court agreed that privacy protection was available.  Further, appellate review was allowed.

The Court of Appeals reversed the Appellate Division, noting that its ruling would allow a party to effectively “hide” otherwise discover-able material simply by marking it as private or otherwise curating their own social media postings. It permitted the Defendant to review post accident postings in search of evidence to rebut Plaintiff’s claim to have suffered cognitive injuries and loss of life’s enjoyment caused by the accident.

The ruling was not open ended however. The trial court had ordered all pre and post accident photos to be produced without regard to privacy settings except those involving nudity or romantic encounters. It also ordered Facebook to produce records of the frequency and length of the postings so that pre and post accident activity could be compared.  The Court of Appeals upheld those limitations but added that a request for these kinds of materials needs to be reasonably calculated to yield relevant information.

Needless to say, in the world of divorce, the scope of relevancy will be considerably broader than that associated with a claim for physical injuries. But, the ruling is an important one.

Forman v. Henkin  http://caselaw.findlaw.com/ny-court-of-appeals/1889175.html