Facebook, for better or worse, has become a way of life for many people. Whether it’s posting a map of your morning run, your child’s first steps, or sharing a video of your cat falling down the stairs, the need to share on Facebook and other social media has become so interwoven into our daily routines that many times we fail to filter what we’re posting. Sometimes it’s important that we catch ourselves from posting about certain topics or issues, and nothing could be more true than using social media during a legal proceeding; in particular, during a divorce or other family law proceeding.
In courts throughout the country judges are listening to, and taking into consideration as evidence, people’s social media accounts and postings, particularly when it relates to a party to the litigation or an issue within the case itself. As long as a party can properly “authenticate” Facebook posts or messages— establish the messages as having been originated by that particular party at a certain time that is relevant to the proceeding—the Court will consider such evidence. In fact, social media evidence is starting to have a substantial outcome on the cases in which they are introduced.
In a recent news story out of New York, the father was able to show through his ex-wife’s Facebook posts that the she had been traveling extensively, both domestically and internationally, leaving the child in the care of a social worker while the child was supposed to be under the mother’s direct care and custody. Examples of the Facebook evidence introduced in that case included posts showing the mother traveling throughout Italy, posting pictures of her European adventures, and then on another trip she posted a picture from Boston saying “…on the waterfront eating oysters and lobster.”
Naturally, it is safe to assume that almost every Court would look negatively on this type of behavior. Therefore it becomes important, at least during times of litigation ( including the time periods immediately preceding and following the litigation) to try and self-censor as much as possible on your social media accounts. These cases demonstrate the Court’s willingness, and sometimes eagerness, to hold parents accountable for behaviors that, before the advent of social media, would have been subject to a “he said, she said” analysis.
With cell phones now capturing every event, and people documenting their lives through social media, the best practice, at least when it comes to social media and litigation, is to do the opposite of the old Nike ad campaign: just don’t do it!
Attorney Russell J. Frank is a partner at CPLS, P.A. and focuses his practice areas on family and marital law. Contact Attorney Frank today to discuss any family or marital legal issues you may be experiencing at firstname.lastname@example.org.