Facebook and Family Court

Seemingly everyone uses Facebook and other social media to stay in touch with friends and family. Facebook makes it easy to share messages, photos, videos, etc. about anything on your mind. In many ways it has become the 21^st century equivalent of a personal journal. You can discuss your day-to-day activities with your kids and significant other, trips you’ve been on, parties you’ve gone to, thoughts and feelings about your ex-partner, etc. These records often contain a goldmine of evidence helpful to resolving divorce and custody cases. You can find proof the other side is lying, doing drugs, abusing alcohol, cheating on you with their latest boyfriend/girlfriend, etc.

It is easy to download an electronic copy of Facebook data and Facebook has provided a tool to do so. You can find detailed instructions at https://www.facebook.com/help/302796099745838 .

How useful (or damning) case Facebook information be to your case? Consider these recent examples:

In the divorce case of B.M. v. D.M. the court relied upon a wife’s Facebook postings to reduce her claim for alimony. The wife claimed she needed alimony because she suffered an accident years ago that prevented her from working. But her Facebook and other social media postings contradicted that claim. She posted pictures of herself engaged in physically-demanding activities that showed she could work. Ironically enough, in the middle of the case she posted she knew she should “be careful” about what she put online because her ex “would love to fry me with that” if he found out about it. He did.

In Y.A.B. v. A.C.B., a court relied upon a dad’s Facebook postings showing him partying at a bar and holding a bottle of beer at a child’s birthday party to prove he was an alcoholic and threat to his children’s safety.

In Ashby v. Murray, the court relied upon a mom’s Facebook postings to prove she lied when she claimed she was watching her children and was actually working out-of-state.

In the Utah case of Black v. Henning the appellate court held Facebook records of conversations between a party’s attorney and a custody evaluator about going shopping together could be used to show the evaluator was biased and her custody evaluation report was unreliable.

In my own practice I use Facebook evidence regularly to support my clients’ cases. I’ve had instances where the other side accused my client of domestic violence but then admits her in her Facebook messages that claim was false. In another case the other side claimed my client should not be allowed contact because the child was too ill to go outside but then posted pictures on Facebook account showing the child doing just fine outside that day. Cases where the other side posts pictures of themselves getting drunk or stoned at parties (when they are supposed to be watching their kids) and even contacting friends to buy illegal drugs. And other cases where the opposing party claims she is at home watching the kids but then posts pictures to her Facebook account showing her off having fun halfway across the country with her new boyfriend and no children in sight. This information was extremely helpful to getting my clients a good outcome in court.

Facebook postings are generally considered “discoverable” in family court proceedings. That means if you have posted anything relevant to the issues in your case online you may have to turn it over to your ex. And by “postings” I do not mean just what you post on your public “wall” or “timeline” but also private messages, photographs, and videos.

Facebook also keeps track of every time a user logs in, the IP address they logged in from, and their approximate latitude / longitude coordinates they logged in from. Why does this matter? Knowing where a person is logging in to their Facebook account can be useful in certain situations such as a parent who claims they are home watching the kids while their Facebook record shows he or she logged in halfway across the world.

Knowing what a treasure trove of information Facebook contains, some litigants are tempted to delete their social media data or refuse to provide it when ordered to do so. That is generally unwise. Besides being unethical, if the court finds a party has destroyed or tampered with evidence it is allowed to assume they did so because that evidence would have hurt their case and supported what the other side is claiming. You are going to have a difficult time winning at trial if the Judge assumes everything out of your mouth is a lie and everything your ex says is true because you were the one who went about hiding evidence.

If you currently have a Facebook account and might be going through a family court battle (or are currently in one) it is generally a wise idea to assume everything you post (including instant messages) will show up in court. If you cannot discipline yourself to not say anything harmful about your case you may want to consider deactivating (but not deleting) your account so you are not tempted to post anything harmful. Just as police remind suspects when they are being arrested, anything you say may be used against you in a court of law. Even seemingly innocent statements could make or break your case.

Another thing to watch for is what your friends post and share with you. While you may be able to police what you post on your Facebook account, you may not be able to stop a friend from “tagging” you in an embarrassing photograph (say of you getting drunk in front of your kids or passionately kissing someone you met at the bar) that is now going to be your ex’s Exhibit A.

If you have older children they may very well be Facebook “friends” with you and be able to see what you post on your account. Under these circumstances it is important not to say anything negative about the other parent online and make sure you do not let your friends badmouth the other parent on your page. Judges and custody evaluators get upset when they find out parents are badmouthing each other in front of their kids and may hold the offending parent in contempt for doing so. If you are badmouthing your ex online (or turning a blind eye to your friends doing so) and your kids come across that posting you may quickly find yourself in hot water with the judge. Do not do it.

Are you going through a family court battle and looking for a smart, aggressive attorney who knows how to use social media records to benefit your case? Give the attorneys at Wiser Family Law a call today at 855-254-2600.