Effective Uses of Social Media in Family Law

Effective Uses of Social Media in Family Law

According to a recent survey, 58 percent of people use or have a profile on one or more social media networks. That number increases to 89 percent for those under the age of 30. The largest and most popular social media site is Facebook, followed by Google+, LinkedIn, Instagram, Twitter, Tumblr, Snapchat and Pinterest.1 The information available on these various sites can be tapped into and utilized in almost any family law proceeding.

Child and Spousal Support

A party’s ability to work and pay child and/or spousal support is a common issue in family law cases. Often, one party claims he or she cannot work or is unable to find employment. In this situation, if a person has a LinkedIn profile, you can obtain information and evidence including a resume, educational background, work experience, skills and employment history. This information, along with the party’s communication with others in a network of contacts and connections can be used as to show the party has the ability (education, work experience, skills) and opportunity to work.

This can be a factor in child and spousal support cases where a party either cannot or will not obtain employment and you are asking the court to impute income to that party. On the other hand, if a person is actively making connections and contacts, he or she could use that information and other analytical data available on LinkedIn to show that the person is making a sincere effort to find employment. No matter what side you are on, LinkedIn is a resource that should not be ignored.

In addition to a party’s ability to pay support, there is often the issue of the standard of living during the marriage that is relevant to most spousal support cases. Something as innocent as photos from a recent trip to Europe, a weekend in Vegas or pictures of food at fancy restaurants posted on Facebook or Instagram, can be used along with credit card and bank statement as evidence regarding a party’s standard of living, disposable income or ability to pay child and/or spousal support.

Child Custody and Visitation

Facebook, for example, may reveal a person’s contact information, work and education history, as well as a list of “friends,” detailed conversations and posts that include photos, “check-ins,” status updates and “likes.” From this site alone, you can gather information regarding a person’s interests, activities, beliefs and even attitude towards the other spouse or parent, as well as where that person is located at a specific time.

Facebook is often used to support a parent’s claim that the other parent may not be spending custodial time with the children, or exposing the children to inappropriate activities (such as drinking or drugs) or undesirable friends. Keep in mind that it is not only what is on the parent’s page, but also his or her friends and the comments made by friends. This can be especially relevant if the party is also “friends” with the child or children and can see the photos, posts and comments made by the parent on his or her page about the other parent or the divorce proceedings.

The “Kevin Bacon” Effect

You’ve probably heard of the six degrees of separation theory. Because it is a small world, any one person (including Kevin Bacon) is connected to any other person through six or fewer relationships. The same concept applies here—even if your client is not “friends” with the other party, he or she probably has friends in common, thus giving the other party access to the information your client posts on his or her friend’s social networking sites.

Those same friends that allow you to view a spouse’s information may also come across postings by your client and share that information with the other party; or your client’s postings may be seen by the other party as others comment on or share them. Understanding how information gathered from social media sites can help support your case also forces us to consider how the information can be used against your client.

It is important to advise your client at the very first meeting to stop all social media activity. If the client refuses to do that, at least get him or her to agree to upgrade all privacy settings (and unfriend the other party) so as to limit who has access to the client’s information. You should give all of your clients the same advice, whether it is a text, email or post on social media: (1) Write it as if the judge is going to read it; and (2) When in doubt, don’t do it. You just have to hope your client will follow this advice.

Getting the Information: No Reasonable Expectation of Privacy

Most of the time, the information obtained from social medial comes from our clients as a printout or screen shot of the page. Depending on the issues in the case and the resources available to the parties, it is a good idea to follow up these initial findings with formal discovery. Parties in litigation are entitled to discovery of all relevant, non-privileged information. Thus, social media content is subject to discovery, despite the privacy settings imposed by the account user. The user’s right to privacy is commonly an issue in discovery disputes involving social media.

Litigants continue to believe that messages sent and posts made on their Facebook pages are “private” and should not be subject to discovery during litigation. In support of this, litigants claim that their Facebook pages are not publicly available but, instead, are available only to a limited number of designated Facebook “friends.” Courts consistently reject this argument, however. Instead, courts generally find that “private” is not necessarily the same as “not public.” By sharing the content with others—even if only a limited number of specially selected friends—the litigant has no reasonable expectation of privacy with respect to the shared content.

Thus, the very purpose of social media—to share content with others—precludes the finding of an objectively reasonable expectation that content will remain “private.” Consequently, discoverability of social media is governed by the standard analysis and is not subject to any “social media” or “privacy” privilege. However, courts have held that the discovery requests cannot be too general or overbroad and must to tailored to show relevance to an issue in your case.2

Parties and counsel are well advised to adjust their thinking so that social media becomes just another type of electronic data, such as emails and text messages that must be preserved and is subject to discovery if relevant to the dispute. Clients should be advised against trying to delete or otherwise altering their social media (except for increasing privacy settings), since this could potentially be viewed as tampering or destruction of evidence.

As we all become more active on social media and as more sites are developed, it is important to remember that what may seem like an innocent “like,” post, check-in or picture may end up being used as evidence against in a divorce or child custody proceeding. As attorneys, we need to remember that the other party’s social media pages may be a source of information helpful to assist us in presenting our case.

[1] Source: Statistic Brain Research Institute, Browser Media, Socialnomics, MacWorld, December 1, 2015.

[2] See Mailhoit v. Home Depot USA, Inc. et. al 2012 U.S. Dist. Lexis 131095