Q. My ex-husband and I are involved in a bitter custody dispute. I recently realized he had not changed his Email password, and so I was able to enter his account and review his emails. I found evidence that proves he is using drugs, and I think this puts my son at grave risk. How should I best present this evidence to the Family Law Judge?
Invasions of Privacy May Constitute Domestic Violence
A. In my opinion you don't, and I'd advise you to stop snooping
his emails no matter how important you think it is for the safety of your
child. Beyond the fact that you expose yourself to a civil lawsuit for
invasion of the Father's privacy, and have violated various State
and Federal laws, you run a couple of other serious risks that may adversely
affect the custody outcome you seek - these far outweigh whatever advantage
you think the information gives you.
Most importantly as it relates to custody under California law, invading
someone's email account and sharing what you find quite arguably constitutes
a form of domestic violence. This was established two years ago in a case entitled
Marriage of Nadkarni (2009) 173 Cal.App.4th 1483. If permanent restraining orders are issued
in a domestic violence action that your ex could choose to file against
you when he learned what you'd done (i.e., when you submitted the
emails as exhibits filed with the court), a smothering presumption arises
against you under
Family Code section 3044 "that an award of sole or joint physical or legal custody of a child
to a person who has perpetrated domestic violence is detrimental to the
best interest of the child, pursuant to Section 3011." In other words,
if the family court granted orders against you as a result of this conduct,
you may end up assuring you lose your case and hence the ability to safeguard
the very persons whom you hope to protect.
In
Nadkarni the Husband gained access to the wife's email account and attached
copies of her private email between she and others (including her attorney)
to show that Mother had lied to Child Protective Services, and that she'd
told the children to lie to him as well - and more. Husband argued he
had "no choice" but to use these emails because his "kid's
safety was at stake" and that he'd accessed the accounts "in
sheer panic and desperation" to protect the children. Sound familiar?
Upon discovering this Wife immediately sought temporary restraining orders
pursuant to
Family Code section 6320. That section permits courts to issue DV orders to stop behavior that amounts
to "disturbing the peace." She alleged that she had never authorized
Husband to use the account or given him the password. She also claimed
that Husband was using the information to stalk her, and that his activities
made her fearful because he'd beaten her badly during the marriage
- and was criminally convicted of same.
While a temporary order was issued upon her application, at the hearing
for permanent restraining orders her application was denied. The trial
court felt that this behavior did not rise to the level of what should
be restrained under the Domestic Violence Prevention Act.
Wife appealed and the trial court's interpretation of FC section 6320
was reversed. The appellate court ruled "we believe that the Legislature
intended that the DVPA be broadly construed in order to accomplish the
purpose of the DVPA. Therefore, the plain meaning of the phrase 'disturbing
the peace' in section 6320 may include, as abuse within the meaning
of the DVPA, a former husband's alleged conduct in destroying the
mental or emotional calm of his former wife by accessing, reading and
publicly disclosing her confidential emails." The case was ordered
sent back to the trial court to hold a full hearing on the wife's
claims. I imagine she won that hearing.
Family law disputants are often acting in "sheer panic" but
the ends do not justify the means. You risk blowing yourself up if you
attempt to use the material you obtained in any way. Destroy it. I suppose
we could come up with exceptions or justifications under extreme facts,
where for instance a conspiracy to commit a murder or some other major
crime was uncovered, that might trump the prohibition against this type
of behavior. But the value of what you have here is insufficient to justify
your actions, and the evidence would likely not be admitted anyway over
an objection. Even if your husband does not press the advantage you potentially
give him by seeking DV orders against you, most judges (and hopefully
a lawyer advising you) will question your decision-making abilities once
you expose what you did. A lawyer would be ill-advised to submit these
emails to the court on your behalf, not merely tarnishing his own reputation
but possibly exposing himself to civil liability as well.
Resist your panic, and resist your curiosity. These disputes dial people
into temporary insanity and reactivity, and often the result winds up
bringing about the very thing they most fear (this dad gaining primary
physical custody and reducing your custodial timeshare). There are better
ways to skin this cat.
T.W. Arnold, C.F.L.S.