social media icon on screen, child custody

Facebook posts, pictures, and other items shared on other social media platforms (e.g. Twitter, Instagram, Pinterest, and LinkedIn) can be used against parents in divorce and child custody disputes. Technology’s relentless push has improved the lives of millions of people. The Internet has enabled entire generations to leverage the collective knowledge of humanity to build better, safer communities.

However, Facebook’s openness is also a danger for parents who do not take their social media profiles seriously. For example, a mother in New York was compelled to produce four years of Facebook posts and photographs. Her husband, in filing the motion, argued that she was out of the state and country when she claimed to be at home. At the time of the case, very few courts had used social media profiles in custody disputes. However, the Court held that the time the parties (the parents) spent with their child is relevant to the determination of custody. Essentially, the Court accepted that social media posts could be used to evidence a person’s behavior in court.

Social Media

Social media is a popular buzzword that describes any online platform that allows users (people) to create durable profiles, interact with a community, and share information or content. The most famous example is Facebook. Conversely, Google is not a social media company or application (although a division of Google, Google+ is a social media platform).

Social media posts are, by definition, public. During the aforementioned case, the mother argued that her (1) posts were private and (2) that she ‘defriended’ her ex-spouse. The court determined that, contrary to her belief, Facebook posts are public because they were published to the world (that is how something goes “viral,” i.e. popular over the Internet). Since her posts were public, the Court reasoned, they were not private and thus were proper for admittance into evidence.

Other social media companies include Twitter, Instagram, Pinterest, and LinkedIn. However, there are countless others from messaging apps to Reddit. Social media is a loose term to define any platform that enables people to interact with one another.

Social Media is Public

The brilliance and problem with social media are that it creates a sense of community. People share information, and they believe that it is only accessible by their immediate friends, similar to their social circles in real life. However, Facebook, Twitter, and the other major social media companies explicitly provide in their terms of use (the contract with which every user agrees to prior to forming an account) that Facebook, Twitter, etc. owns their respective content.

Theoretically, under that waiver, Facebook could use the photos of any use in a commercial or to generate other content. A famous example is the “memories” function Facebook recently introduced. “Memories” is a video that is automatically created by Facebook that collects photos and data between long-time friends on Facebook and makes it available to the respective friends to share. Facebook did not ask for permission to create those videos, it pulled its user’s data and automatically created it.

“Memories” is a harmless little function however it speaks to the broader world in social media that people do not understand. Social media is inherently public. Anything that is posted can be found, even if that person sets their privacy settings to the maximum.

Risks in Child Custody Disputes

The disconnect between social media profiles and child custody disputes is that people do not appreciate that what they say out of the courtroom can affect how the court views and rules on their case. For anyone who doesn’t work in public relations or isn’t a politician, carefully scrutinizing everything they say or shares on social media doesn’t even cross their mind.

However, during a divorce, the courts get involved in the most intimate details of the divorcee’s lives. Anything that provides an inkling into that life and is relevant to the court proceedings could be entered as possible evidence at trial.

For instance, if a father contests that the mother is not spending time with their mutual child or taking their mutual child out of state without permission. Before social media, the father was forced to rely on his testimony or, hopefully, the testimony of one of his ex-wife’s friends to substantiate his allegations. However, Facebook and other social media now enable that father to peruse his wife’s public posts to see when and where she has been. If those photographs or posts contradict her in-court statements, the father can further use that as evidence that she is untruthful.

Social media, for all of its benefits, lacks controls or alerts to remind people that they need to be careful what they post and when, particularly, if they are going through a divorce.