As a society, we have become more dependent on technology and many of us
have developed a strong social media presence. We share our thoughts,
our photos, and our personal details on websites (and communities) such
as Facebook, Twitter, and Instagram. Social media now also plays a role
in many types of legal proceedings.
criminal cases, prosecutors use evidence such as photos or status updates found on public
Facebook pages to prosecute crimes.
personal injury cases, attorneys have used information from social media websites as evidence
to argue a plaintiff is not as injured or as incapacitated as claimed.
family law cases, social media may reveal personal information about a party, at times
resulting in an unintended or detrimental effect.
Social Media in the Courtroom and During Your Case
Because family law is a very personal area of the law, the use of social
media during a family law case can also be very personal. The parties
in a family law case may use their social media pages to communicate with
or to complain about the other party. As with emails or other written
communications, such correspondence may be used to show that a party communicates
inappropriately or is otherwise behaving badly.
However, more than just your communications with the other party may become
part of the court record. The photos, status updates, and other postings
on your account could also be used as part of your case. Photos posted
to social networking sites may be used to prove how a parent spends time
with the children, whom a party is socializing with,
how a party is socializing (such as going to parties, spending time with people
the court has determined are unsavory, etc.), and where a party was at
a specific time.
It is important to remember that even if you are not "friends"
with the other party, 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 your postings may be seen by the other party as others
comment on or share them.
In addition, during the discovery phase of your case (the time when both
parties request information from the other and investigate to prepare
for trial or other resolution), the other party may request a copy of
your social media page. And because the scope of discovery allowed is
typically broad, courts will likely make available your Facebook and other
social media postings.
Social Media and Your Children
As Facebook and other social media websites become more popular, provisions
addressing social media usage have become more popular in parenting plans
(or orders addressing parenting). For example, a parenting plan may include
a provision that both parents must agree to permit their child to start
a Facebook page, or that a child will not be permitted to start a Facebook
page. If you have concerns about your child's access to social media,
you should consider addressing those in your parenting orders.
Your own social media activity can also come into play 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 have even been 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.
Often, parenting orders include a requirement that parents refrain from
speaking with their children about their family law case or making negative
comments about the other parent in front of their children. If your children
have access to your social media pages, and you have discussed your case
or the other parent on your page, the court may disapprove of those posts.
Best practice is to refrain from posting any information related to your
case in the social media forum.
Getting Information from the Other Party's Social Media Pages
The other party may have information relevant to your case on his or her
social media page as well. You can typically request that information
during your discovery process. If the page is public (or you are still
"friends" with the other party), you can obtain the information directly.
You should not, however, try to "hack" into the other party's
pages to see what the postings or create a fake account to "friend"
them. The court may consider a fake "friending" to be inappropriate,
and hacking may lead to legal consequences.
As we all become more active on social media, it is important to remember
that what you post online could become evidence in your family law case
(or at least be reviewed and scrutinized). You should be mindful of your
postings and privacy settings as well as what others post on your pages.
You should also remember that the other party's social media pages
may be a source of information helpful to assist you in presenting your case.
As you proceed in your family law case, You should discuss the potential
uses of information from social media pages as well as how to obtain that
information with an attorney in your state.