Since the launch of Facebook in February 2004, our society has become increasingly dependent on social media. Facebook, Twitter and Instagram have become the infrastructure of our communication. We post thoughts, photos and personal details on these websites (and communities). As a result, social media now plays a significant role in family law cases.

When a person shares or posts to a social media site, this information can be utilized in Court to show how a parent spends time with the children. Social media may provide evidence regarding where a person was at a specific time, who a person is socializing with, and how a person is socializing (going to parties, spending time with people the court has determined are unsavory, etc.).

Even if you are not “friends” with the other person, he or she may have access to the information posted on your social networking sites. If you have friends in common, those individuals may come across your postings and share that information with the other party, or the other party may see your postings as others comment on or share them through social media.

In a family law case, information is shared with the other side to prepare for trial or mediation though a method called discovery. You may be asked in a discovery request to provide a digital copy of your Facebook page. Deleting or taking down your Facebook page during your family law case is NOT allowed, as this would cause spoliation (or destruction) of valuable evidence.

Social Media and the Kids

As Facebook and other social media websites become more popular, provisions addressing social media usage are seen more frequently in orders addressing parenting, such as a Final Decree of Divorce or Suit Affecting Parent Child Relationship. For example, parents may be required to share information with the other parent through Our Family Wizard, a private social media forum for convenience and to be able to verify the information was shared in future disputes.

Your own social media activity can influence the Court’s decisions regarding your children. As discussed above, your photos and status updates may be scrutinized to determine how you spend your time or what you expose your children to when you are with them. There are numerous cases where information on a parent’s social media pages has been used to assist the other parent in presenting evidence related to child support and other parenting issues.

Tales from the Trenches

Consider these examples of how social media can be used in family law matters concerning children:

• A woman in the midst of a divorce from an alcoholic husband and seeking custody of their children had to contend with her estranged spouse’s insistence to the judge that he had found religion and sworn off alcohol. Her soon-to-be ex inadvertently helped her cause when recent photos of him appeared on Facebook, depicting him with a beer in each hand and a joint in his mouth;

• In a custody fight, the ex-wife claimed to be engaged, and therefore more capable of providing a stable home environment for the children. But thanks to a friend of the ex-husband who remained “Facebook friends” with the estranged wife, the former husband received some very helpful information—a posting on Facebook that the wife had broken up with the fiancé (who was allegedly abusive), and that she was seeking friends of hers to fix her up with “a rich friend”;

• In a Louisiana custody case, the ex-husband’s lawyer did some digital digging, and found some sexually explicit boasts and graphic pictures posted by the ex-wife on the MySpace page of her new boyfriend. The court awarded custody to her ex-husband;

• In another custody matter, a father was denying drug use. His protests might have been proven more convincing if the background of his MySpace page hadn’t prominently featured marijuana leaves;

• A wife who had kicked out her husband, changed the locks, and cleaned out bank accounts overlooked one crucial item: it’s not enough to “de-friend” your ex when he can access your profile when it’s open to “Friends of Friends,” thanks to mutual acquaintances. Despite her denials of infidelity, her husband found her celebration of the three month “anniversary” with her new boyfriend—only one month after the split. Other gems uncovered by the ex-husband’s online sleuthing included messages from the wife to friends of hers about how good the husband was to her, as well as proof that trips taken prior to the separation to see her sick father were actually romantic getaways with the new boyfriend;

• One husband in Florida had a habit of frequently posting on Facebook his frustrations over everything, including parenting. His ex-wife’s lawyers made liberal use of these statements during the fight over custody. [1]

Conclusion

As we all become more active on social media, it is important to remember that your social media posts could become evidence in your family law case (or at least be reviewed and scrutinized). You should control your privacy settings and be mindful of your postings as well as what others post on your pages. Remember that the other party’s social media pages may also be a helpful source of information to assist you in presenting your case.

[1] Social Media Dos and Don’ts: Divorce in the Digital Age, John G. Browning and Rick Robertson, 2013.