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Key Takeaways

Can Social Media Be Used In Divorce Or Custody Cases?

Yes. It is generally not sufficient evidence when used on its own, but it is often used in court as evidence to prove or disprove fitness as a parent or to support allegations that higher child support should be awarded because of the payor's lavish lifestyle- at least as it's portrayed on social media.  

Social Media During A Child Custody Battle.

Although a mere presence on social media does not affect custody battle, it is crucial to be cautious of what you post, which posts you interact with, who your friends are, and what your child's social media activities are if they also have social media accounts. Often taken out of context, the content may harm your battle for child custody and affect child support payments if the social media presence shows that you may be unfit as a parent or have more income than you disclosed for support calculations.  

person checking social media on their phone

Social Media Posts As Evidence

Social media posts can, and often are used as evidence to show that a parent is unfit, unable, or unreliable to care for a child and that it would be in the child's best interest to restrict or limit that parent's parenting time. Even for any evidence in the trial, a foundation must be laid before using social media posts. However, this can be as simple as verifying that you are the social media account owner.  

Please note that just like with all other evidence, DO NOT DELETE any social media posts that you have a reasonable belief may be used in your custody battle or divorce. So, it is a wise idea to avoid posting such material.  If you are unsure about whether or not you can delete a social media do not hesitate contacting an experienced family law attorney who can help you best determine your next course of action.  

However, if you post or interact with a social media post that may affect your custody battle or divorce, ensuring your setting are set on private may be your best effort at keeping this out of the eye of the unintended viewer without deleting the evidence.  

Publishing To Social Media During Divorce

Most people create social media accounts to create a persona who is living a beautiful happy, entertaining, and prosperous life as they wish their lives were in reality, ultimately boosting their ego: fun, lavish, entertaining, and engaging. This means that often, people tend to show off the best but rare moments and aspects of their lives on social media; these posts, more often than not, exaggerate our financial status and security. For example, most people post pictures from vacation, eating fancy dinners, and going out with friends because generally, society deems these as worthy of posting.  

However, if you're involved in a divorce proceeding, these types of posts tend to become problematic. When your social media interactions reach the other party to your divorce, it can give that person and the court reason to believe that the maintenance support calculation is inaccurate and that based on your social media lifestyle display, you should be able to afford to pay more in support.  

This is problematic when the social media posts are grossly inaccurate of your actual finances—leading to expensive, litigious, and time-consuming wild goose chases to find money that may not even exist. So, be mindful of your social media presence to avoid unnecessary litigation costs and expenses.  

Publishing To Social Media After Divorce

Once your divorce is finalized, with the final divorce decree entered, you may relax a bit. Unless your social media presence would create a reason for the ex-spouse to believe you defrauded them while negotiating the marital settlement agreement, your posts generally will not be problematic post-divorce if no children are involved.    

Remember that if you have minor children, the issue of custody, even if a final order has been entered, can be modified if enough new evidence arises to show a substantial change in circumstances has occurred. If your social media presence has any tendency to prove that your financial situation has dramatically improved, it may be used as evidence to support an investigation and reopen discovery to verify your finances to adjust support. Discovery is usually time-consuming and very costly; under certain circumstances, you may be liable for covering the costs of these discovery efforts.  

The best thing to do is to stay off social media; however, if that's not an option, try to limit and filter your posts and social media activity so that none of the activity can be construed and used against you in divorce or child custody proceedings.  

Woman on social media in her car

Will Posting to Social Media Impact Child Custody Outcomes?

Simply posting harmless social media posts, such as sharing funny videos of animals, does not affect the outcome of a child custody battle; however, posting, commenting, or even liking various content containing drug, alcohol, or other controlled substance paraphernalia may be used against you in a custody battle. These types of posts, comments, or likes are often used as evidence against a parent, even if the social media content as evidence is pulled out of context.  

Often taken out of context, specific social media activities can be used as evidence to show that you may be unfit to be a proper parent because you are irresponsible and involved in controlled substance use. When such social media activity is entered into evidence against you, then it is your responsibility to disprove these allegations with other evidence and proof.    

For example, a picture in which you are standing next to friends, and there is drug or alcohol paraphernalia in the background of shot glasses and a bottle of liquor. This paraphernalia can be used to insinuate that you are an unfit parent because you are likely to bring the drugs and/or alcohol around the child, exposing the child to possible harm, and therefore for the best interest of the child, it's best for the court to limit your parenting time. Such a decision to limit parenting time can be the furthest from best, but if evidence to the contrary of the adverse allegations is hard to produce, you may be stuck with an adverse custody court order.  

The courts generally consider many factors and the totality of the circumstances when deciding child custody outcomes in the child's best interest. Social media posts may add unnecessary chaos to a custody battle and can impact it negatively when there are posts on your social media; posted by you, commented on by you, or in which you are tagged in by people you may know.  

Also, similarly to social media posts used to prove financial discrepancies when calculating maintenance during a divorce, social media posts and activity can be used as evidence by the other co-parent when the other parent is determined to prove that you have more income than you disclosed when calculating child support.  

If staying off of social media is not something you are willing to do, try these tips on social media use during custody battle divorce proceedings:  

  1. If you have nothing nice to say about your ex-spouse or the other parent, do not post negative comments about them on Facebook. Don't post memes, song lyrics, pictures, or other symbolism to indicate that you are bad-mouthing your ex-spouse or the other parent.  
  1. DO NOT DELETE! If you already made a poor choice of posting something that may affect your custody battle or divorce proceeding, do not delete this post because you may be sanctioned for tampering with evidence. The best thing to do in such a situation is to reach out to your attorney as soon as possible to understand your options.  
  1. Set all your social media accounts to private so that only you and the people you approve can see your profiles.  
  1. Limit friends to only people you know and trust; do not accept friend requests from people you do not know to prevent unintended exposure of your posts.  
  1. Unfriend and block all mutual friends that you may have shared with your ex-spouse /the other parent because even if your profiles are set to private, when a mutual friend likes or comments on your post, it could possibly allow your ex-spouse/ the other parent to see your post.  
  1. Last but certainly not least: unfriend and block your ex-spouse/ the other parent on all social media platforms  

What About Allowing The Child To Use Social Media?

If you do decide to allow your child to have a social media profile, it is a good idea to remain in control over their profile to monitor and filter who they are friends with, what they post, and what kind of posts they engage with.  

For the most part, the same rules apply to using your social media activity as evidence in child custody and divorce as to using your child's social media activity. So, if you have established and do not want to cross privacy boundaries with your child and trust their judgment in social media use, the least you can do is communicate with them what is and what is not appropriate social media behavior.  

Ensure your child understands that their social media presence should be private and that content should be limited to an approved scope of information.  

It is essential not to use this conversation as an attempt to alienate your child from the other parent. Parental alienation is a slippery slope and can create emotional distress for the child and further chaos in divorce and/or child custody proceedings.

December 16, 2022
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Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.
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