Ex parte Internet search by Judge prohibited.

Rutanhira v. Rutanhira, 2011 VT 113 (Skoglund, J.)


Father appeals an order awarding mother primary legal rights and responsibilities for the parties’ daughter based on the court’s conclusion that father exercised poor judgment in desiring to take his daughter to his birth country, Zimbabwe. The trip, planned for the summer of 2010, coincided with the World Cup in South Africa. Mother objected. She viewed the trip to Zimbabwe as far too dangerous for daughter. Though father wanted daughter to know her heritage, he ultimately acquiesced to mother’s wishes. Nevertheless, this was the issue upon which the family court based its award of legal custody to mother. The court reasoned that “[t]aking the child to an unstable place . . . would not be a wise idea” On appeal, father contends that the trial court abused its discretion by considering evidence outside of the proceeding, specifically a post-hearing internet search about Zimbabwe. We agree that the trial court erred in relying on evidence gathered outside the proceeding, which father did not have an opportunity to contest, and we reverse and remand for the family court to rehear this matter.


There are two concerns about judicial Internet searches. Reliability and permanence of information are constant concerns with Internet-based resources. See D. Tennant & L. Seal, Judicial Ethics & the Internet: May Judges Search the Internet in Evaluating & Deciding a Case?, 16 Prof. Law. 2, 14-16 (2005). In its decision, the court referred to a “sampling” of information the court had viewed on the Internet. This was not necessarily a source Father relied upon in 2009 when making his decision. We cannot determine whether the “sampling” of information the court obtained from these sites was exhaustive or selective. It is impossible for us to review the record given the dynamic nature of information on the Internet and the necessarily time-bound query that produced such articles. The articles examined by the court, as far as we know, spanned several years and are from sources whose record for accuracy is unknown.


Second, is the lack of notice and opportunity to be heard. A court cannot undertake an Internet search after the submission of a case on an issue material to that case and rely on information or evidence not properly introduced. In doing so, a court denies parties the opportunity to address the information and confront potentially harmful evidence. Even in the context of judicial notice, our Rules of Evidence demand that the parties receive “an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed.” V.R.E. 201(e). Other appellate courts have reached a similar conclusion when reviewing a trial court’s reliance on Internet searches undertaken after the close of the hearing. Here, the trial court conducted its own investigation, using this further investigation to determine the outcome of the case. Neither party could reasonably expect such additional fact-finding. Neither had an opportunity to test any of the evidence acquired through this investigation. It was error for the court to rely on this evidence.