WISCONSIN

A child custody dispute will get a new hearing because the judge became Facebook friends with the mother before his ruling

Bruce Vielmetti
Milwaukee Journal Sentinel

A Wisconsin judge just learned the hard way that it's an ethics no-no to become Facebook friends with a woman right before ruling on her custody dispute.

The Court of Appeals on Wednesday agreed with the child's father that the social media move, done after a contested hearing but before a decision, was objective bias and ordered a new hearing before a different judge.

Barron County Circuit Judge Michael Bitney

"The right to an impartial judge is fundamental to the notion of due process under both the United States and Wisconsin Constitutions," Judge Mark Seidl wrote for the District III panel.

Timothy Miller and Angela Carroll had joint custody and shared placement of their son since 2011. In 2016, Caroll sought sole custody, primary placement and child support. A two-day evidentiary hearing was held in June 2017 before Barron County Circuit Judge Michael Bitney.

Part of the hearing included Carroll's claims that domestic abuse by Miller led to the changed circumstances driving her request. 

Bitney gave the parties 10 days to submit written arguments. After they did, and before he had ruled in the case, Bitney accepted Carroll's Facebook friend request. The connection was not disclosed to Miller.

While waiting for Bitney's decision, Carroll liked 18 of Bitney's Facebook posts and commented on two of them. Bitney didn't like or comment on any of hers, though he didn't deny reading them.

"During this same timeframe ... Carroll also 'liked' multiple third-party posts and 'shared' one third-party photograph related to domestic violence," Seidl wrote for the court.

"Although there is no evidence Judge Bitney ever directly observed the third-party posts, it is undisputed that, due to the nature of a Facebook 'friendship,' Carroll’s activity could have appeared on his Facebook 'newsfeed.' "

In July, Bitney granted Caroll's motion. On that day, the guardian ad litem for the child learned that Carroll had posted on Facebook that "the Honorable Judge granted everything we requested" and then discovered Carroll and Bitney were Facebook friends. 

Miller asked Bitney to reconsider his decision, saying the Facebook connection gave the appearance of partiality. Bitney said he'd basically made his decision before Carroll's friend request, and denied the request. Miller appealed.

Writing for the District III court, Seidl noted that while no Wisconsin case has directly addressed judges' social media connections with litigants, other states' rulings and the American Bar Association provided guidance.

Using social media, alone, shouldn't disqualify a judge, and the court wasn't suggesting any "bright line rule" about the issue. But it found that the circumstances in the custody matter clearly gave the appearance of impropriety.

Carroll's friend request, and Bitney's acceptance ahead of his decision, "conveys the impression that Carroll was in a special position to influence Judge Bitney’s ultimate decision — a position not available to individuals that he had not 'friended,' such as Miller."

The problem was compounded by the fact Miller didn't know of the connection, making Carroll's Facebook contacts with the judge akin to "ex parte communications," generally prohibited contact with a judge by one party in a lawsuit without notice to the opponent.

"Our decision does not reach the merits of Judge Bitney’s ultimate decision on Carroll’s motion, and we recognize the parties will be required to relitigate their custody and physical placement issues.

"However, we cannot ignore the constitutional requirement that Miller have the custody and physical placement determinations regarding (the son) made by an impartial decision-maker."

It's unclear whether Carroll or the judge still use Facebook; neither could be found Wednesday during a simple search of the service.