John E. DeVito, Esq., of DeVito and Visconti, P.A.

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A defendant charged in a district court in Massachusetts with violating a restraining order/ no contact order by posting comments on his Facebook page was dismissed. The defendant's ex-girlfriend obtained an order which included no contact of any kind, including electronic contact to herself or their two children. The defendant was also not allowed to contact the ex-girlfriend or the children through third parties. As part of the restraining order the defendant was not allowed to visit with his children.

Shortly after the order went into effect, the defendant posted, on his personal Facebook page, a comment to his children that he was not giving up on them and still love them. His children were ages one in four at the time.

The ex-girlfriend heard from third parties that the defendant had posted this comment on his Facebook page. She conducted a search on Facebook and found the comment. She reported to the police who filed a criminal complaint of violating a restraining order. It was unclear at the time of the issuance of the criminal complaint whether the ex-girlfriend was included as a friend on the defendant's Facebook page. If the matter had gone to trial the defendant would have been vehemently denied that she was a friend and would have argued that she surreptitiously navigated other friends Facebook pages in order to access his Facebook page.

The defendant filed a motion to dismiss. The argument was that this was the defendant's personal Facebook page and there was no direct contact or third-party contact with his children. These comments were merely remunerations of a father expressing his love for his children to his friends on his Facebook page. The children, ages one and four, could not access a computer or other electronic device with Internet access, and even if they could access such a device, they certainly could not navigated the device to find the defendant's Facebook page. The only way the children could have learned about this comment would have been if the mother/ex-girlfriend told the children. There was no evidence that the children were told of the comment.

There are no cases on point in Massachusetts at the time; however, there was a case out of New York State. The case of People v. Welte 211 WL 133-1900 is a case involving similar facts to the ones described above, in which the court in Webster New York asked the question "does communication to a person's acquaintances listed as friends on a Facebook account violate a no contact order of protection?". The judge concluded that contacting friends and family via a "friends list" would not in the normal course of events violate any provision of law. The defendant was not directed to stay away from friends and family of the complainant. The accusatory instruments do not allege that he was intentionally attempting to contact the complainant through her "friends lists".

If a defendant is charged with violating a restraining order via Facebook, he or she would be wise to hire a competent and experienced criminal defense attorney to challenge the issue.

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