By Ariel Sosna and Sarah Van Voorhis, Van Voorhis & Sosna
The founder of a right-wing website and a YouTube prankster normally wouldn’t have much in common. However, Alex Jones (Infowars.com) and Michael Martin (DaddyOFive of YouTube) both recently lost custody battles because of, at least in part, their public personas. DaddyOFive is known for prank videos on YouTube. The victims of Martin’s pranks were his children: all were subjected to yelling and swearing, and some were subjected to more specific pranks. For example, Martin told one child that he was being given up for adoption to another family, he smashed the child’s X-Box with a hammer, and he refused to take him to Disney World with the rest of the family just to get his reaction on video. Eventually the videos caught the attention of another well-known YouTuber, and child protective services became involved. Martin’s ex-wife and mother of two of his children sought and was granted an order for temporary custody using the videos as evidence. Martin argues most of the videos were fake, but he has not been successful in convincing the court of that.
Alex Jones is famous for very different reasons. As a radio personality and founder of Infowars.com, Jones is known for his over-the-top performances and conspiracy claims, like the contentions that the Sandy Hook massacre and 9/11 terrorist attack were hoaxes. His website is one of the original “fake news” sources. In 2015, Jones and his wife divorced and he received primary custody of the parties’ children. Two years later, his ex-wife sought a modification of custody based on Jones’ on-air and online behavior. Jones dismissed his actions as ‘performance art’ while his ex-wife characterized them as proof of Jones being emotionally unstable and engaging in ‘parental alienation syndrome’ by turning the children against her. A Texas jury agreed with her (Texas allows juries in certain family law actions) and gave his ex-wife the ability to determine where the children live, but Jones will continue to have visitation rights.
While Jones’ case was a Texas jury trial and Martin’s was a Maryland/North Carolina hearing, the underlying principle applies to California. In making custody awards, a court’s primary concern is to “assure the child’s health, safety and welfare.” (See Family Code §3020). Where a parent’s lifestyle has been raised as an issue, California has moved away from making custody decisions on such grounds. (See In re Marriage of Wellman (1980) 104 Cal.App.3d 992 and In re Marriage of Russo (1971) 21 Cal.App.3d 72, overnight visitors are not grounds for change of custody). However, regardless of the cause, when the conduct has a negative impact on the children, then the court will intercede. (See In re Marriage of Roe (Clinton H. & Laurie Keiko C.) (1993) 18 Cal.App.4th 1483, father’s anger toward mother caused the court to refuse to order custody to him; In re Marriage of Lewin (1986) 186 Cal.App.3d 1482, mother accused father of bribing her last three attorneys). Martin and Jones have learned a painful lesson about blurring the line between their public personas and their personal lives, especially when it relates to their children. Perhaps high profile cases such as these will inform the public, as well.