Social Media’s Impact on Family Court Proceedings

Hossein Berenji, Apr 15, 2016

According to some studies five new Facebook profiles are generated every second and nearly 6,000 tweets are sent out per second. In a number that has almost certainly increased since the study’s release, a 2011 research study indicated that there were 18,747,420 Facebook users in California.

This meant that nearly one out of every two California residents had a Facebook profile. By analogy, in the context of family law, this would mean that in every divorce decree issued in 2011, at least one of the spouses involved in the proceeding would have an online presence. Since 2011 Facebook, Twitter, and other forms of social media have grown exponentially. Social media takes up a large presence in our personal and professional worlds. We set up pages for business and interests, and we share our personal thoughts, our feelings, and of course our photos of moments that we find special. We want all of our friends and followers to have a glimpse into our lives.

However, when you are involved in a legal dispute, social media can do far more harm than good. It can adversely impact custody decisions, the division of property, and other decisions made by a court. It can turn from a fun way to pass the time to a difficult challenge to overcome in the court. It is much harder for things to remain secret in the information age.

Social Media’s Impact on Child Custody Proceedings

California law allows discovery of information that is not privileged and that is “reasonably calculated” to lead to discoverable evidence. Just because a Facebook profile is private, does not mean it is privileged. Privilege is a legal concept that is generally fairly limited to only specific types of relationships. In fact, both public and private Facebook profiles may be used as evidence in a courtroom. Just because you have restricted the privacy settings on your profile does not mean that someone who could use it against will not be able to gain access. Facebook is willing to comply with proper legal requests under Federal and California law.

There have been cases in which Judges have allowed Facebook posts and pictures to be used against a parent seeking custody. Courts have taken into account the language used in posts to determine whether or not a custodial parent had the physical and emotional ability to care for a child. If you are in a child custody case, you should be incredibly careful what you post on Facebook because it is something an ex-spouse might see or something that may be used by their lawyer against you.  For example any of the following might negatively impact a domestic dispute.

  • Even if it is just a dream or a wish list, posting pictures of new fancy cars or large homes may come to issue if spousal or child support is an issue. A judge may interpret some of these messages as an inflated ability to pay support
  • Posts referencing drug use or alcohol may impact a Judge’s decision if you are fit to be the custodian of children
  • Posting about a new girlfriend or boyfriend may raise suspicions about adultery that could affect alimony awards.
  • Posts on dating sites that distort your relationship or parental status

If someone posts something on a social media site without thinking, it may impact the award of custody or many other issues in the family court. If you think a post will have any negative impact, it is probably better to not post at all. That being said, it is also possible that a post you think may have a positive impact will actually harm your case or your chances of winning custody.

Social Media’s Impact on Divorce Proceedings

Much like how it can impact custody proceedings, social media is a frequent tool used in California Divorce cases. 81% of the nation’s top divorce attorneys say that they have used some form of social media as evidence in court. Our attorneys have used social to help our own clients and against other parties. It is a valuable tool in many stages of family court proceedings.

Who are Your Real Friends?

Often throughout the course of a marriage you become friends with friends of your spouse. It is not uncommon for you and your spouse to share many friends. In a social medial context, this can be problematic because if you are in the midst of divorce proceeding you may have many connections or “friends” on social media who turn out to have a stronger allegiance to the person you are getting divorced from.

These individuals may share what you believed to be private messages with an ex-spouse. Also these connections may give light into what an ex-spouse is doing. While you may block your former spouse from seeing your online activity, a friend of yours might post a photo of you in a compromising situation.

However, the use of social media in divorce proceedings can go both ways. It can harm your case or make your case against the person you are seeking divorce from stronger. To avoid problems with your case, it is a good idea to avoid using social media to complain or make negative comments about your ex. A polite demeanor online and in court can go a long way.  Make sure your privacy settings are restricted, as you may not want certain people seeing what types of activity you are engaging in. You should also avoid making any changes to a relationship status online during divorce proceedings.

While social media is an important part of many people’s lives, sometimes it is just a better idea to stay off accounts completely while a case is pending.

How Social Media Affects Visitation

Social media and technology have allowed divorced parents, especially those who live far apart from their children, to engage in normal visitation schedules. Video Chats and webcams have allowed for virtual visitations by the noncustodial parent. Some states, such as North Carolina have passed specific virtual visitation laws that allow electronic communication to replace or supplement face to face communications if they are in the best interest of the child.

Virtual visitation may be especially helpful in a case where a parent may need to move away from where the child is located. Sometimes work obligations, family or education requires the non-custodial parent to move so far away, that the custody or visitation schedule would be impacted. If you think that virtual visitations would be in the best interests of your child you can contact an experienced family law attorney who can help you modify your existing visitation schedule.

Social Media’s Effects on Restraining Orders, Protective Orders, and Civil Harassment

Sometimes courts in Los Angeles County must issue a type of order in a family court proceeding that protects one spouse from another. This usually arises in cases where there is domestic violence, abuse, or harassment. Under the Domestic Violence Protection Act of California abuse is not limited to actual physical violence, and can include contacting the victim by “mail or otherwise”.

If a restraining or protective order is in place, contacting an ex-spouse over social media, or even tagging them in a post may be enough to violate the order. In 2015, a Pennsylvania man was brought into court for liking photos of his ex-girlfriend who had filed a protective order against him. A judge determined that after the man had made a threat (the cause of the original protective order), that pressing the like button twenty-two separate times was enough to violate the order. More and more courts have viewed Facebook speech as similar as a face to face conversation, so it is incredibly important to be careful in what you post.

Future of Social Media in Court

One New York court has just recently deemed service of process via Facebook as an acceptable method of giving an opposing party notice of a law suit. In that case, a wife had been trying to divorce her husband for many years; however she had been unable to serve papers on her husband in the traditional sense. A judge approved a request to allow service by “alternate means” which meant that the wife could send her husband divorce papers by Facebook. It is unclear if California and other states will follow New York’s lead on this issue, but as technology continues to grow and expand, it is possible that this type of service may expand to California.

How a Lawyer Can Help

The presence of social media is only going to expand in the family court. Whether you are going through a divorce, are in a child custody battle, or any other familial dispute, you need a team of strong attorneys on your side who understand the implications social media can have on your case. We are here to assist you to help get your life back on track. Contact Berenji & Associates today. If you are active on social media, Like us on Facebook and Follow us on Twitter