A Westchester judge has allowed a dad to use his wife’s Facebook profile as a weapon in their custody battle, a groundbreaking ruling that could alter the way New York couples fight it out in court.
Anthony DiMartino, 54, claims a review of his estranged wife’s Facebook page will prove she was frequently out of state while he was raising their now-4-year-old son.
“The data will show that it is he, and not she, who has spent the majority of time with the child during the past four years,” DiMartino’s legal papers argue in the fight for physical custody of the boy.
The social worker “has been the primary caregiver,” his lawyer, Gordon Burrows, told The Post.
But mom Christina Antoine, a psychiatrist who works with multiple state agencies, tried to block the move, arguing that her profile is private and that she “unfriended” her hubby when they split.
Antoine, 47, assumed she would prevail, Burrows said, because there were no previous rulings granting access to Facebook pages in New York state custody cases.
But in a precedent-setting decision, Westchester County Supreme Court Justice Lawrence Ecker ruled in favor of DiMartino.
“The court finds that the time spent by the parties with the child may be relevant and material to its ultimate determination of custody,” the judge wrote in a ruling released last week.
A look at the public portions of Antoine’s private page shows her sightseeing in Florence, Italy, and sampling seafood in Boston just this summer.
Antoine is seen at Milan’s Duomo in a picture posted July 28. Under it, a comment posted July 29 says she’s back stateside “in Boston . . . on the waterfront eating oysters and lobster!”
A court-appointed lawyer for the child said Antoine “maintains that she was around a lot more than” DiMartino says she was.
“So the social-media piece is something that will shed some light on that,” said the child’s lawyer, John Pappalardo.
Ecker ordered Antoine to hand over her login info by Sept. 14.
Pappalardo said the couple split after five years of marriage over “communication” problems.
DiMartino is “extremely pleased with the ruling and thinks it’s a first step in gaining custody of the child,” Burrows said.
While the ruling is the first of its kind in New York, a Minnesota judge has allowed social media to be used in such cases on rare occasions, that state’s law journal says.
The New York decision means state judges are catching up with the times, according to a family law expert not involved in the case.
“I think that as they begin to understand what a treasure trove of data there is, and as they begin to understand the technology behind it . . . it gets treated like any other evidence assuming it’s reliable,” said lawyer Michael Stutman, head of family law at the firm Mishcon de Reya.