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Friday, October 17, 2014

Social Media Update: Oklahoma Supreme Court Rejects Service by Facebook Message



Earlier this week, in In re Adoption of K.P.M.A., the Oklahoma Supreme Court considered the validity of service by Facebook message.

In re Adoption of K.P.M.A. involved a custody battle between a biological father and adoptive parents.  In this case, a child was born out of wedlock. Under Oklahoma law, the father is entitled to be notified of the existence of a child.  In this case, the biological mother, in a Facebook message, notified the father that she was pregnant and planned to give the child up for adoption.  Although the date the message was sent is clear, when the father actually read the message is unknown; at trial, the father testified that he first found out about the child’s existence 7 days after its birth.

The Oklahoma Adoption Code governs who may consent to the adoption of a minor child and provides that a child may be adopted when both parents have consented to the adoption or if one parent consents and the other is dead or has no parental rights.[1] See 10 O.S. § 7503-2.1.

Significantly, Oklahoma law provides:

Consent to adoption is not required from a father or putative father of a minor born out of wedlock if:

1. The minor is placed for adoption within ninety (90) days of birth, and the father or putative father fails to show he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy; or

2. The minor is placed for adoption within fourteen (14) months of birth, and the father or putative father fails to show that he has exercised parental rights or duties towards the minor, including, but not limited to, failure to contribute to the support of the minor to the extent of his financial ability, which may include consideration of his failure to contribute to the support of the mother of the child to the extent of his financial ability during her term of pregnancy. Failure to contribute to the support of the mother during her term of pregnancy shall not in and of itself be grounds for finding the minor eligible for adoption without such father's consent.

10 O.S. § 7505-4.2(C)(1-2).

Importantly, a natural father of a child born out of wedlock is entitled to notice of the existence of a child and this right is protected under the Due Process Clause of the United States and Oklahoma Constitutions. Due Process, simplified, requires notice and the opportunity to be heard. So, before parental rights can be terminated, notice to the father must be effectuated.

As I mentioned in this post, service by electronic means, including email and social media, has emerged as a viable alternative to traditional service methods in certain, albeit severely limited, circumstances.

Here, the father was provided notice of the child’s existence through Facebook message.

In a 6-3 vote, the Oklahoma Supreme Court held that service by Facebook alone does not satisfy the due process requirements of the Oklahoma and United States Constitutions.

Writing for the majority, Justice Combs held:

Instead of contacting Father directly, Mother left him a message on Facebook, which is an unreliable method of communication if the accountholder does not check it reuglarly or have it configured in such a way as to provide notification of unread messages by some other means. This Court is unwilling to declare notice via Facebook alone sufficient to meet the requirements of the due process clauses of the United States and Oklahoma Constitutions because it is not reasonably certain to inform those affected.
Importantly, in this case, the mother provided no evidence of difficulty of service by traditional means.  To the contrary, the mother actually visited the father of the child at his workplace during the early stages of her pregnancy. She declined to notify him in-person, or even by certified mail, and instead chose Facebook.

Although the Oklahoma Supreme Court has rejected service by social media, this holding is narrow; the Court rejected service by Facebook message alone.  This case does not expressly prevent service through social media in addition to service by traditional methods.

Moral of the story? Check your Facebook! ..............and Twitter, Insta, SnapChat........

You just never know. 






[1] This blog post only discusses the surface of adoption law. The Oklahoma Adoption Code is outside my area of expertise and extremely complicated. If you are considering adoption, contact an attorney who specializes in family law.

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