COMMENTARY

Is it realistic to think a judge never looks on the Internet to check a fact or conduct some research before making a decision? Everyone knows that judges may only consider evidence on the record when making a decision, but, at the same time, every lawyer and judge has easy access to the Internet. For most of us, all you have to do is take your phone out of your pocket and you are on the Web. Most judges even have computers on the bench.

It only follows that, with such an infinite amount of information available at a judge’s fingertips, they would conduct their own independent Internet research about a case from time to time. There are certainly instances when litigants or lawyers dispute an issue that can easily be settled by a quick Google search. Tempting as that may be, the Pennsylvania Superior Court has made it clear that this kind of independent research is impermissible and warrants reversal.

In the recent case of M.P. v. M.P., 54 A.3d 950 (Pa. Super. 2012), a three-judge Superior Court panel reversed a trial court for conducting its own Internet research on the Hague Convention. In M.P., the mother was awarded primary physical custody of the parties’ child and the father was permitted supervised visitation two hours per week. The father did not exercise his periods of supervised visitation with the child for 18 months leading up to the hearing in this case. The parties also agreed, per consent order, that the mother would have sole legal custody of the parties’ child.

The mother filed a petition seeking permission from the court to travel to Ecuador (where she grew up) for three weeks in order to visit family. Despite the fact that the mother had sole legal custody, the trial court did not permit the mother to travel to Ecuador because the father objected. The trial court relied on Ecuador’s “history of noncompliance” with the Hague Convention, which led the court to the conclusion that it was not in the child’s best interest to go to Ecuador. The trial court’s finding on Ecuador’s noncompliance resulted from Internet research it had conducted after the trial on the Hague Convention. The court was clear that it was concerned about a court in Ecuador failing to enforce a Pennsylvania order requiring the return of the child after the three-week visit.

The Superior Court reversed, initially holding that allowing the father a say in the decision effectively granted him de facto shared legal custody, which was in direct contravention to the parties’ agreement. The court also found that it was an abuse of discretion for the trial court to conduct its own Internet research on Ecuador. The trial court stated that the mother failed to provide any assurance that a custody order entered by a court in Pennsylvania would be afforded comity by an Ecuadorian court through the Hague Convention. The Superior Court noted that no testimony was provided by either party that referenced the Hague Convention or any international treaty; however, in its opinion, the trial court outlined the websites it visited regarding the Hague Convention and, in particular, Ecuador’s noncompliance with the Hague Convention in 2004, 2005, 2006 and 2008.

The Superior Court concluded that the trial court abused its discretion by relying on information obtained through its own Internet search that took place after the hearing had been concluded and after the judge had taken the matter under advisement. The court further held that these facts were not something of which the judge could take judicial notice and, even if it were, the mother was never permitted an opportunity to be heard as to the propriety of taking judicial notice of those facts.

The mother pointed out in her brief to the Superior Court that there were reports on the Internet more recent than what the court reviewed — from 2007, 2009, 2011 and 2012 — that showed Ecuador was in compliance with the Hague Convention. The mother argued that her due process rights were violated because the trial court relied on evidence not of record and ignored the most recent data on Ecuador’s compliance with the Hague Convention.

To further the mother’s point, the trial court never even disclosed its Internet search until it authored its 1925(a) opinion on the appeal. How could the mother have ever addressed this issue at trial if she never even knew the trial court used the Hague Convention data in reaching its decision until after she appealed?

In reversing the trial court, the Superior Court relied on the similar case of Nye v. Nye, 917 A.2d 863 (Pa. Super. 2007). In Nye, the father filed a petition to reduce his child support obligation claiming that he experienced an involuntary loss in his income. At trial, the issue became whether the father had sought to mitigate this decrease in income by looking for other work. He presented evidence that he conducted a job search and that there were no jobs available to him at his former salary.

During cross-examination, the trial judge conducted an impromptu Internet job search from the bench and began questioning the father about the positions he had found on the Internet. The trial court was impressed with the number of job openings in the father’s field (over 1,000) and ultimately assigned the father an earning capacity at his previous earnings, holding that the father had not made serious efforts to pursue alternate employment.

The trial court in Nye acknowledged that it conducted the Internet search, but denied that the results of the search played any role in its conclusions. The court stated that the Internet job search was used simply to demonstrate the types of efforts that could be made to find employment. The Superior Court rejected this reasoning, though, and held that the trial court’s determination that the father “had not made a reasonable effort to find appropriate employment” was obviously based on the court’s Internet job search, as there was not other evidence of record on the topic. Since the trial court therefore relied on evidence outside the record, it committed reversible error.

M.P. and Nye send the strong message that regardless of how tempting it may be to seek out information on the Internet during a trial, a judge should stick to the evidence put on the record. Attorneys must be tuned into this as well and be ready to object to a judge who does any research or fact-checking on the Internet. Otherwise, you have run afoul of the Rules of Evidence, trampled due process rights and invited appellate review. While this may seem counterintuitive to those of us who use the Internet to instantly find things from phone numbers to case law, it’s a different story in the courtroom when you are making a record.

Andrew D. Taylor is a partner in the family law practice group at Weber Gallagher Simpson Stapleton Fires & Newby, where he represents individuals in all matters of divorce, support and child custody.