Illinois Family Law Advocate : Peoria Family Lawyer & Attorney : Shahzad R. Khan Law Firm : Divorce, Child Support : Chicago, Bloomington, Normal & Sangamon

If you are going through a divorce, are separated, or are involved in some other form of family law related litigation, be aware of what client's post on social networking sites.  Recently, the American Academy of Matrimonial Lawyers conducted a survey in which they determined that: "81% of the nation's top divorce attorneys say they have seen an increase in the number of cases using social networking evidence during the past five years."  

This is true.  It is true because I have used this evidence against opposing parties in divorce and paternity litigation.  You will be surprised as to what evidence, clues, and information is posted on social networking sites for your client and the opposing party. Although the article specifically mentions Facebook, all social networking sites are fair game in family law litigation.  I also include dating sites as sources of valuable information.  

In one such case, I had the opportunity to prevent the illegal removal of a child from the state of Illinois.  In that case, the opposing party was leaving clues and all sorts of information of her planned move to another state on her myspace page.  Her exact words were quoted in placed in an ex-parte petition for temporary restraining order and the pages were printed out and attached as exhibits to the petition as well.  Lets just say that the opposing party was shocked  when she was served with a court order temporarily restraining her movement with the minor child and the petition that quoted her own words and showed pictures of her own statements. 

Attorneys need to advise their clients about the pitfalls of social networking sites while involved in family law litigation.  Client's should inform their attorneys that they have these sites and they frequent these sites. A question about social networking should always appear in an initial client questionnaire.

It is important to advise the client to limit their presence on these sites and remove possibly objectionable and damaging material.  It is also advisable for attorneys to have the passwords to these sites to monitor their client's information so that it does not jeopardize their rights and cause damage to their cases.  

Important points to remember: 

• This is important! Social networking sites are public forums and therefore are sources of public information.  
• Be careful who you accept as a friend on social networking sites.  Limit access to your personal information to only those you trust.  In this day and age it is very difficult to trust someone on the internet.  
• Do not post objectionable pictures.  These are pictures that are sexually suggestive or pictures that place yourself or a child in danger of being harmed. 
• Do not post objectionable comments.  These include comments regarding your state of mind, including that you are depressed or you have thoughts of suicide  Also do not post your feelings of rage and anger towards your spouse, ex-spouse or significant other.  In addition, do not post your thoughts, feelings and emotions pertaining to persons involved in your case, like the judge. 
• Make sure your attorney is aware that you have these sites and make sure your attorney reviews the sites with you to remove objectionable information or information that could be construed in a wrong way. 

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For years many states, including Illinois, followed what is known as the tender years doctrine.  The tender years doctrine is essentially a doctrine that states that the mother of children in their tender years is the preferred parent to have custody of the subject children when the issue of custody is being litigated.  

Fortunately, this doctrine has been abolished.  The First District Appellate Court in the case, In re Marriage of Kennedy, 94 Ill.App.3d 537, 545, 49 Ill.Dec. 927, 933, 418 N.E.2d. 947, 953 (1st Dist. 1981) states that the legal presumption no longer exists.  The Court specifically states:

[C]hanging social and legal trends have cast the tender years doctrine aside.  The doctrine rested on a sociological presumption that maternal affection is more active and better adapted to the care of the child than that of the father.  With the advent of new lifestyles for both men and women, however, the factual basis for the doctrine, if there ever was one, has vanished . . . .  The sex of the candidate for custody is but one of the many factors that may be considered in determining which parent receives the child. 

The Court basically provides the holding that the sex of either parent is not the definitive factor in determining custody of the child.  The sex of either parent may be considered as one of many other factors in determining custody.  Previously, the courts in custody litigation may have considered more mothers over fathers to be awarded custody, because the previous trends had been that more mothers were primary care givers versus fathers.  

However, again, sex of either parent is not defining factor that determines custody.  Other factors that the court may consider are outlined in Section 602 of the Illinois Marriage and Dissolution of Marriage Act.  But, please note that this list of factors is not a complete list.  Other factors may exist depending upon the facts of your particular case. 

In addition, the tender years doctrine is no longer considered the presumption because social trends and social norms have changed and continue to change.  Due to the recent economic downturn, more men are unemployed and as such are at home with their children, while more women are joining the workforce. Due to this role reversal, many men are able to argue that they are in a better position to care for and be present for their children.  

Similar conclusions are discussed in a  November 2009 article by Working Mother Magazine called Custody Lost, in which Sally Abrahms states: 

A shift in the courts’ focus, a limping economy and dramatic male/female role reversals in many nuclear families are leading to nontraditional outcomes. Not long ago, men usually paid the child support and doled out the alimony. Moms (working or not) almost always got the kids in messy divorce wars. Years of changing diapers, wiping noses and kissing boo-boos gave them the edge. But now the tide is turning.

Times have changed.  Societal norms and trends have changed.  Men, who traditionally were the sole bread winners in families, have lost their jobs due to tough economic times.  This has caused women, mothers to pursue employment that was previously unnecessary during good economic times.  This has resulted in more children being taken care of by their fathers and more fathers getting primary custody of their children.

This does not mean that if you are an unemployed father taking care of your children that you are entitled to a preference for custody of your children.  This simply means that there has been a leveling of the playing field in custody litigation, where both men and women have an equal chance of being awarded primary custody over their children. 

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There are approximately forty or so states in the country that offer joint custody as a custody arrangement in a divorce or parentage proceeding. Unfortunately, I haven’t come across the numbers that state how many states in the country have joint physical custody as the default form of custody for these cases. In my opinion joint physical custody or shared parenting should be the starting point and not something that we eventually get to. But, obviously joint physical custody is not for everyone.

Too many times have I seen children being used as pawns by one parent to achieve a specific result in a particular case. It's simply wrong and should not ever happen. But, it happens every day in courts, law firms and settlement conference rooms where the children are dealt like marital or non-marital property.

I’m sure that the process of litigating these cases would be substantially shorter in duration and less costlier if joint custody was the default. Litigants would not use every penny they possess to hire the best experts to evaluate the opposing party’s psyche to find that one fatal flaw and instead save that money for their child‘s future. In addition, we all know what effect a long drawn out domestic relations proceeding can have on children. Over on, "Illinois Divorce Law blog," Mike Roe, a friend and colleague states it well in his post, Shared Parenting Laws: Will Illinois Ever Consider Shared Parenting?:

As a lawyer and aggressive advocate for my clients, I enjoy a strongly contested case, but the fight over the custody of children is a battle that often should not be fought.

I couldn't have said it better.

Unfortunately, people have their priorities mixed up. It's all about getting even, getting the better position in life and getting the better property settlement.

Your kids are not property. Your love for them cannot be equitably divided.  

Here’s an idea: Why don’t you stand together and show your children that even though our relationship may not have worked, we stand together to co-parent you, to care for you and to provide you with a proper upbringing.

Your children will thank you for it.

We all know that there have been countless studies done on the affect of growing up without a parent being fully present in the lives of children. Do you really want to make your child fit a statistic? I hope not. I hope that one day in the not so distant future, Illinois will join the ranks of those states that make joint physical custody or shared custody the default presumption making both mother and father fit to have custody of their children. 

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