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Social Media and Evidence in Family Law Cases

Posted by admin on August 25, 2016

Social media is so prevalent in our modern culture that most people no longer think twice when someone asks if they saw the latest celebrity tweet or Instagram photo, whereas these terms would have us scratching our heads in confusion just a few short years ago.  Most social media websites are largely fun and even helpful or informative. But for anyone who is going through a divorce or child custody battle, social media can be a two-edged sword. One party may think their Facebook post is innocent, while the other party may view it as the perfect piece of damning evidence to swing the case in their favor. This article is intended to illustrate some of the benefits and pitfalls associated with social media in the context of a family law case.

Can Social Media be used as Evidence?

The simple answer to this question is a resounding “Yes”. When it comes to family law matters the personal lives of the individuals involved are highly scrutinized. For example, the standard used by a court in determining child custody and visitation is “The best interests of the child”. (TFC Section 153.002) There are multiple factors that a court should look at when trying to determine the best interests, most of which were determined in a landmark Texas Supreme Court case in 1976, Holley v. Adams. (544 S.W.2d 367 (1976)) Among these factors is the parenting abilities and any acts or omissions by any parent involved. This means that each party is under a microscope and anything they say or do can and will be used against them, if the other party puts it into evidence. With the rise of social media in our everyday lives, it is no surprise then that it is being used in our legal system too.

In a survey taken in 2010, 81% of lawyers taking the survey cited an increase in the use of evidence from social networking websites during the past five years, while just 19% said there was no change. Facebook made up 66% of this type of evidence, MySpace followed with 15%, Twitter with 5%, and other choices listed with 14%. This survey is six years old, so it may be presumed that the numbers are at least slightly higher now compared to then.

What can you do to protect yourself and your case?

If you have any social media accounts and you’re involved in a divorce or other family law proceeding chances are the other party (and their lawyer) has looked at your accounts. There are some things you can do to help your case.

  1. Change your passwords

If your spouse or other person involved has access to your account, change your passwords immediately. This especially helps if the account is not otherwise publicly visible.

  1. Shut down your accounts

Closing all of your accounts temporarily may be drastic, but it may be worth it. It’s better to go a few months without Twitter updates than it is to have some post be twisted around by the other party’s lawyer and lose precious visitation time with your children.

  1. Choose your posts carefully

If you think you can keep your accounts open without much damage, then you should still exercise caution in what you post. What you think is an innocent photo of a weekend party with some friends can be interpreted by the court (with the other side’s help) as an indication that you’re an alcoholic who won’t take time to be with his children. This is an area and time where less is definitely more. Even “staged” postings where you take photos of yourself and your children smiling at the park, may come across as fake, and therefore hurt your case.

  1. Adjust security settings

Every social media site has its own security settings. If you and your attorney think it is best, then you may want to restrict who can view your posts as much as possible. But beware. Just because you have restricted who may see your page, if someone else “Likes” a post or comments on something then it may show up on their account, which likely won’t have the same restrictions.

Can I just delete everything?

It is best to consult with your attorney before you destroy any possible evidence in a lawsuit. This is because you may get in trouble for “Spoliation”. The spoliation of evidence is the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding. – Black’s Law Dictionary (8th ed. 2004). This is especially the case if you destroy evidence after it was requested by the other party in formal discovery requests, or the court ordered you to produce it. So even if you shut down your accounts, think twice before dumping it all in the trash can.

Conclusion

Divorces, child custody battles, and even adoptions can be emotionally draining on everyone involved. They can also have serious, lasting consequences on your family relationships. If you are going through a law suit of this type, remember you are under a microscope and every little thing you do can help or hurt your case. And because social media is being used as evidence at an ever increasing pace you must be careful what you post, like, tweet, blog, etc. This article listed a few brief tips on how to protect yourself and your interests, but each case is different. Therefore, we always recommend consulting with an experienced family law attorney to know how to best handle these matters.

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