Internet Law

Appeals court says judge's Facebook friendship with child-custody litigant could show bias

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A Wisconsin judge created the appearance of partiality when he accepted a Facebook friend request from a woman before giving her sole custody of her son, a state appeals court has ruled.

The Wisconsin Court of Appeals ruled Wednesday that the woman’s request to modify custody should be relitigated before a different judge, report the Milwaukee Journal Sentinel and the Associated Press.

Judge Michael Bitney accepted the friend request after a June 2017 evidentiary hearing in which the woman introduced evidence that the child’s father had abused her, the appeals court said. The father denied the claim.

Bitney accepted the woman’s Facebook request without disclosing the connection to the father or his lawyer, the appeals court said. Before he ruled on her case, the woman liked 18 of the judge’s Facebook posts and commented on two of them. She also shared a photo from a third party that related to domestic violence.

Bitney did not like or comment on any of the woman’s posts. He ruled for the woman July 14, 2017, awarding her sole legal custody and primary physical placement of the boy. After the Facebook connection was discovered, Bitney said it didn’t affect his decision because he already had decided how he was going to rule.

The opinion noted a 2013 ABA ethics opinion that said judges may participate in electronic social networking—but they must avoid contacts that would undermine impartiality or create an appearance of impropriety.

The appeals court said that the timing of Bitney’s acceptance of the friend request could cause a reasonable person to question the judge’s impartiality. Failure to disclose the Facebook friendship heightened the appearance of partiality and created concerns about one-sided ex parte communications, the court said.

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