When I first started practicing law, “snail mail” was a common practice, and evidence at divorce and child custody trials mainly consisted of verbal testimony, photographs, pay stubs and tax returns. Today’s legal setting is fast-paced; emails are expected to be answered yesterday, and the world is replete with more written evidence than most judges need or care to see. With an exponential increase in most of us living behind technological devices like computers, cell phones, tablets, and so on, I routinely talk to my clients (and my own children) about the care which should be taken when it comes to social media.
For the last decade, it has been an increasingly common practice for litigants in Court proceedings to obtain evidence to support their case by exploring text messages, emails, and phone call logs. More recently, however, attorneys are able to obtain a plethora of evidence through social media sites like Myspace, Facebook, Twitter, Instagram, Snapchat, and TikTok. According to the American Academy of Matrimonial Lawyers, more than 80% of family law attorneys have seen an increase in the amount of evidence collected from social media in the last five years.
These sources provide more information than the common user considers: where we’ve been, where and when we’re going, who we’re with, what we did, and how we behaved. Even if an individual doesn’t personally broadcast his/her social media, friends, family, and mere acquaintances may snap a picture, tag you, or otherwise post something which directly affects you. Photographs and videos of people drinking, using drugs, or partying can make a person seem irresponsible. Even if you tighten your privacy settings, your personal information can still be obtained through your friends’ profiles and posts. Likewise, privacy settings on phones and social media are not always as private as we may like to believe.
Messages sent to an estranged spouse or opposing party in a moment of anger or frustration can be used at trial to embarrass people or make them appear a certain way. Sharing or posting cryptic messages or sayings on social media platforms, while less direct, are also commonly used in trials to a show a person’s demeanor. This is particularly dangerous when child custody is at issue. In those cases, the Court’s primary focus is determining the best interests of the children. Whether a parent is speaking negatively about the other parent directly to the child, or degrading the other parent publicly on social media where their child or child’s friends may see the message, Courts routinely frown upon such behavior.
In addition, parents – whether estranged or happily married – are often at odds regarding how to manage their children’s social media. While there is perhaps no right answer for any given child or family, if a child has unlimited access to social media at one parent’s house, but has restrictions at the other parent’s house, this can be a factor in the Court picking one parent over the other to have primary physical custody, as it is generally in a child’s best interest to have consistent rules.
Income is commonly another important factor in divorce and child custody cases, as it helps the Court determine issues such as alimony and child support. A person may argue pay stubs and tax returns are a true reflection of his or her income, but if that same person is flaunting photographs and other evidence of lavish vacations and expensive purchases, the Court may question the individual’s credibility.
Finally, keep in mind deleting messages or photos does not make the evidence disappear. If a post is up for even a few seconds, a screenshot can be taken. Deleting the post during a contested lawsuit may also make it seem like the person is trying to hide something. Social media can without a doubt be a double-edged sword, a blessing and a curse. I tell my children, “If you don’t want your father or I to see it, don’t post it.” Clients are well-advised to honor the same message – “If you don’t want the Court (and just as importantly, your children) to see it, don’t write, record, or photograph it.”
The information contained above is for informational purposes only, and is not legal advice or a substitute for legal counsel. You should not act or rely upon this information.
