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Social Media and Domestic Violence Restraining Orders

Family Code section 6320 describes the basis for the issuance of domestic violence restraining orders (DVRO's) against a current spouse or domestic partner, former spouse or domestic partner, family member, cohabitant, boyfriend or girlfriend, former boyfriend or girlfriend, fiancé or former fiancé, or someone with whom the victim shares one or more children. A new version of Family Code section 6320 became operative on July 1, 2014, which includes certain new forms of harassment that have become more prevalent in the age of social media. Now that just about everyone is on Facebook, Twitter, Instagram, or some other kind of social media network, the California Legislature has recognized that these digital platforms can be used for legitimate domestic violence harassment.

Cyber bullying is a crime that not only affects school-children, but is also a tool used by domestic abusers. Emotional abuse expressed digitally can be a very effective means of controlling or harassing a victim. In addition to the traditionally restrained behaviors, the new portion of Family Code section6320 addresses internet impersonation. Specifically, this new portion of Section 6320 allows the court to issue an ex parte order enjoining a party from "credibly impersonating as described in Section 528.5 of the Penal Code," or "falsely impersonating as described in Section 529 of the Penal Code." (Fam. Code §6320(a).)

Credibly impersonating as described in Section 528.5 of the Penal Code is when a person knowingly and without consent credibly impersonates another actual person through or on an internet website or by other electronic means for purposes of harming, intimidating, threatening, or defrauding another person. This includes opening an e-mail account, or an account or profile on a social networking website, in another person's name. This impersonation is deemed credible if another person would reasonably believe or did believe that the harasser was the person being impersonated.

Penal Code section 529 takes it one step further by making it criminal to impersonate another person to make bail; verify, publish, acknowledge or prove any written instrument; or to incur liability for any charge, prosecution, or penalty that would attach to the victim or any other person.

These additions to the behaviors that qualify for a domestic violence restraining order bring harassment into the 21st century. When a marriage or other intimate relationship breaks up, sometimes one party decides to get even by using Facebook or any other Social Media to log in to the victim's profile (or any profile other than their own). They may post nasty comments to get the victim into hot water or leave threatening messages from a third party to frighten the victim. This behavior in itself is now grounds for a domestic violence restraining order under Family Code section 6320(a).

Tech savvy clients and attorneys know that the first place to look for evidence of bad behavior in any family law situation is on the internet. Social media is increasingly viewed as a gold mine of character evidence, and text messages are more permanent than most people believe. Once a comment has been "tweeted" or texted, it cannot be retracted. Schools have taken up the task of educating students on cyber-bullying, but adults also need to be aware that cyber-bullying can be the basis of a domestic violence restraining order. A domestic violence restraining order has significant adverse effects on custody and visitation orders, potential adverse effects on one's job (especially if that job requires carrying a gun, i.e. corrections or law enforcement), and even on spousal support calculations. It is time to learn to think before posting. The consequences of an angry post to an ex's profile could be long-lasting and devastating.

About the Author: Lillian Kirby is an associate attorney at Ruddell, Cochran, Stanton, Smith & Bixler. Ms. Kirby practices in the areas of family law, civil litigation, consumer protection, estate planning and administration, and adoption and guardianship.

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