Keep Your Custody Battle Out of the Classroom

 By Michele T. LoBello

In cases involving custody litigation, the court is always interested in the minor children’s education and ensuring that custody disputes do not negatively impact a child’s academic progress.  Certainly information regarding the children’s attendance and grades is relevant in a custody proceeding.  But what happens when custody litigants attempt to make their child’s teacher a witness in the case?  Any attorney who has sent a subpoena to the school or the teacher has likely faced significant resistance. I recently interviewed Carlos McDade, general counsel for the Clark County School District, to discuss CCSD’s policies related to custody actions and the impact on students.  The message CCSD wants parents, and their lawyers, to have is that while educators will always cooperate to give parents access to academic information concerning their child, they don’t want the child’s educators picking sides in a custody case. Issues regarding how custody conflicts impact the child’s educators arise in two primary contexts.  First, during custody litigation, parents often want teachers or aides to give testimony in their custody case.  A parent/litigant will ask a teacher or administrator to provide a written statement attesting to the parent’s merits or the adverse parent’s lack of merit or involvement with the student.  According to McDade, these requests are problematic for multiple reasons.  First, the mission of teachers is to teach, not to compose affidavits.  Messy divorces can ultimately cost the District good teachers who don’t want the stress and hassle of becoming involved in the conflict.  Worse yet, giving depositions and testifying in court take the teacher out of the classroom, which necessarily diminishes the quality of education for the students and requires the school to pay a substitute teacher. Of equal concern is the impact on the child of parents who put their son’s or daughter’s teacher in the middle of the dispute.  School should be a safe place where the child can be free of the conflict between parents so he or she can focus on education and the related extracurricular activities offered at school.  When the teacher is involved in Mom and Dad’s case, the classroom becomes the battle ground, and in the child’s eyes, the teacher represents Mom and Dad’s dispute.  Both the child and the teacher, not to mention the teacher’s other students, are deprived of time and freedom from the stress of the conflict. Custody conflicts often continue between parents long after their litigation concludes.  Once custody orders are issued, as family law attorneys know all too well, enforcing and interpreting those orders can be a challenge in high conflict cases.  This is the second major issue which wreaks havoc on educators.  Often, school administrators and teachers find themselves in the middle of these disputes.  Parents disagree about who is permitted to pick up the child on specific school days.  Parents disagree about whether a child can be removed from a school and re-enrolled in a different school, whether the child should repeat a grade, or whether the child can participate in a sport or take a school sponsored trip. McDade reports that each school, and the office of CCSD’s counsel, receives multiple calls daily from parents seeking to either report a violation of their custody orders or asking the child’s school and CCSD to enforce their custody order.  The District’s policy requires the school’s administration to forward the relevant order to CCSD counsel who reviews the order and advises the administration as to interpretation of the order in question.  CCSD legal counsel does not advise the parents, but they will speak to a parent’s attorney on these interpretation issues. McDade reports that many court orders are ambiguous, especially provisions concerning legal custody rights, which almost always equally empower the parents to obtain information and make decisions concerning the child’s education.  CCSD will not interpret ambiguous decisions or serve as arbitrator where parents cannot agree on decisions concerning education.  In other words, don’t send your clients to the school to resolve these disputes.  If the parents cannot come to an agreement, they should proceed to court to seek specific orders regarding disputed issues, and the lawyers must ensure the orders obtained can easily be interpreted, abided by or complied with by the school and CCSD counsel. CCSD, with over 318,000 students, and over 40,000 employees, has just 10 attorneys on staff.  Four of those attorneys, and their support staff, are consumed with the average five to 10 calls their office receives daily related to custody disputes.  The message here is that practitioners, as a service to not only our clients but to our community and its children, must encourage reasonableness in their clients’ handling of education issues and draft clear, specific orders concerning decision-making and custodial schedules for litigants in high conflict custody cases.  

Social Media Pitfalls in Family Law

By now, most people are aware of the far reaching effects social media posts can have. Videos intended for family and friends can go viral, receiving millions of views. Teachers demonstrate to their students just how many people can end up seeing a post by requesting viewers to share or like their post.  And those looking for employment are warned to either use their discretion before making posts or to keep their social media accounts private. Social media posts have now found their way into the judicial system, and in particular, the family law arena.  Disputes between parties engaged in family law litigation are highly personal, causing many parties to use social media to air their grievances.  However, complaining about the other party on social media may have an adverse effect on the outcome of the case, particularly when child custody is at issue.  In determining the best interests of a minor child in a custody dispute, Nevada Revised Statute § 125.480(4) requires courts to consider which parent would be more likely to allow the child to have frequent associations and a continuing relationship with the other parent, the level of conflict between the parents, and the ability of the parents to cooperate to meet the minor child’s needs.  Parties wishing to share joint physical custody or requesting primary physical custody may encounter problems demonstrating that they are willing and able to cooperate with the other party when their social media accounts tell another story.  Taking a screen shot of a person’s rant is not only easy but becoming increasingly more common. When alimony or child support is at issue, a party may be able to demonstrate that the opposing party is misrepresenting their income or spending that income on expenses and luxuries other than alimony or child support.  People tend to use social media to post pictures of vacations or new purchases, both of which may have an effect on the determination of alimony or child support. Some users might believe they are being prudent by keeping their social media accounts “private.”  However, a party may have access to those “private” posts if the parties share mutual friends who could pass along that information.  Courts may also order the parties to turn over their passwords, usernames and logins for social networking sites to the opposing attorney.  This would allow the opposing party to view posts and comments intended only for friends, along with private messages and conversations. Family law practitioners should advise their clients to be aware of their own social media presence, as well as the opposing party’s.  Parties should monitor their posts, photos, check-ins and comments, all of which can be used to show how that person spends their time, where that person was at a specific time, what that person spends their money on, and whether that person will likely cooperate with the other parent if child custody is at issue.  The most prudent advice would be to not make any posts or comments regarding the family law issues at all.  In addition, clients should be warned not to hack into the other party’s account or create a fake account to “friend” the other party.  These actions may lead to court-issued sanctions or other adverse rulings that would be detrimental to the case. The presence of social media in family law cases is only likely to increase, especially as the courts continue to rule on social media issues.  As such, family law practitioners and their clients must be aware of the consequences of social media on each case and be able to plan accordingly.