The Common Online Habit That Could Sink Your Custody Case

Posting personal information on social media is a hallmark of our times. Studies show that people share personal details online for a variety of reasons, including keeping up with social norms (i.e., “everyone is doing it”), building an identity based upon what is curated and shared, and enjoying the “reward loop” created by the cycles of instant gratification received from “likes” and comments that drives further sharing.

When going through either a divorce or post-decree proceedings, a party’s social media community can also be a source of comfort and support while navigating through those turbulent waters. Although at first it may seem attractive to share the journey of court proceedings won or lost, as well as co-parenting challenges and child custody issues, beware of the many dangers that also lurk in posting such items to the world wide web: your on-line actions - as well as offline behavior shown in photos and other posted items - can negatively impact the outcome of your proceedings.

Here’s a quick checklist of the top things to consider before hitting the “send” button on your next post.

Types of Social Media Activity Subject to Court Scrutiny

Courts across the country regularly examine social media activities as potentially relevant evidence in child custody and visitation matters. How do courts become aware of these items? Parties regularly attach screen shots of posts that they believe undermine the opposing party’s position as exhibits to petitions and motions, or they introduce them as evidence at trial.

Accordingly, you should always assume that anything posted could potentially be presented in court. Ask yourself: Am I OK if the court sees this post? Will it hurt my case if it does? Any hesitation in answering should lead to the conclusion that the post is best left unwritten.

In most jurisdictions, decisions regarding custody and visitation are guided by the court’s assessment of the best interests of the child. Although specific factors may vary from state to state, a “best interests” analysis generally looks to the child's physical and emotional health, the child's relationship with each parent, each parent's ability to meet the needs of the child and provide appropriate care, whether the parent encourages the child's relationship with the other parent, and the stability of the child both at home and at school. A court also considers safety factors, including any history of alcoholism or substance abuse by either parent, as well as any history of family violence, domestic violence, or child neglect or abuse.

A child’s “best interests” can be proven through physical evidence and testimony. This “evidence” can include all types of written communications and documents, as well as photos, videos … and social media posts. To be clear, all the below activities associated with posting to social media are subject to court scrutiny:

• Photos and videos
• Items that are “liked,” reposted and shared
• Comments made on other people’s posts
• Tagged posts
• Status updates, including whether there is a new relationship
• Location check-ins
• Lists of friends and followers
  

A court may consider all these activities in evaluating the “best interests” of children, including the party’s lifestyle choices, behavior and stability. Does the online footprint show partying, drinking or other questionable and inappropriate conduct? Could it be argued that these activities adversely impact that person’s ability to provide the child with a safe, stable and nurturing environment? Does the post impeach the credibility of that party by undercutting prior statements and countering the narrative the party has presented to the court?

In addition, realize that financial details can be revealed through posts that show lavish vacations and expensive purchases. Do these activities align with the arguments you are making in court, or are they at odds with them?

The bottom line is that one parent can use the other parent’s posts to argue that they demonstrate behaviors raising serious concerns about the child’s safety while in that parent’s care. A court may then rely on this evidence to set custody rules, modify those custody or decision-making arrangements, or to place limits on that parent’s parenting time.

Impact of Social Media on Co-Parenting

It is equally important to keep in mind that posting negative comments about a co-parent on social media can fan the flames of discord and increase existing tensions. Remember, part of the best interests analysis looks to whether the parent encourages the child's relationship with the other parent. Airing personal grievances or pursuing a vendetta against the other parent can negatively influence the court’s decision regarding the type of custody judgment entered, as well as form a basis for motions alleging breaches of parenting judgments and/or modifications of existing arrangements.

Further, certain disparaging statements could open litigation on additional fronts. If such assertions are viewed as abusive, harassing or intimidating to the other party, an order of protection could be entered. In addition, false statements published to third parties – i.e. on social media – that cause damage to the other party’s reputation could launch a defamation action.

In addition, don’t overlook that direct messages are also subject to disclosure through subpoena, as well as any messages you thought were “deleted” – but aren’t. Again, always assume that any communication over social media channels is fair game.

Similarly, sharing details of a new romantic relationship online can open a proverbial can of worms regarding custody issues, especially if the social media profile of the new person shows activity that raises questions regarding his or her proximity to the children – not to mention that it can cause unnecessary friction with your former spouse, as well.

Conclusion

Domestic relations litigation often causes emotions to run high and tempers to flare. Instead of lashing out at the other party, consider stepping away from social media until the case is resolved, or use it only to demonstrate that you are a caring, responsible parent who exercises good judgment and puts your child’s needs first.

As a rule of thumb, think twice before posting anything online. Instead, consider talking to a trusted friend or seeking help from a mental health professional to vent frustrations and find solutions. If you’re still in doubt, consult your attorney before sharing information online to ensure it won’t negatively affect your case.