This thoughtful guest post is offered by Caroline Wright, Regent Law 2L and current Family Law student:
Often information adults post on social media accounts is publicly available information viewed by potential employers, college admission councils, or even future jobs in public office or civil service. In February 2019, The National Law Review cited data showing that 66% of divorce cases utilize Facebook as a principal source of evidence.[1] Because of the ability to translate a client's online presence directly to his or her actions at a particular time or even as a habit in which he or she frequently engages, it is important for attorneys to educate their client's regarding healthy social media practices prior to engaging in a custody dispute, or any family legal matter. Ultimately, posts not only by the client, but also by children, may impact a custody petition and be considered as evidence in favor of or against a particular disposition.
When a court makes a ruling on the issue of custody the judge applies the best interests of the child standard. Under this doctrine, states have created a list of factors to consider when evaluating the level of care and parenting that is in the best interests of a child.[2] Different states weigh a specific list of statutory factors in this analysis, but regardless of local policy, these factors are the primary consideration behind a judge's ruling. Other jurisdictions may also use an even broader test and evaluate custody in a manner that the code simply states ensures the child's welfare. Generally, no single factor is dispositive and a judge will look at the facts and circumstances specific to each case prior to issuing a ruling.
As a result, it is imperative that attorneys advise and aid clients to best control the type of evidence that the court may consider in its custody determination. Because the evidentiary standard is lower in a custody case (clear and convincing evidence) compared to a criminal case (instead of beyond a reasonable doubt), the type of evidence the judge will consider is not only more broad, but also highly persuasive because it takes fewer pieces of evidence to tip the court's evaluation of the evidence in one party's favor. Therefore, a legal strategy is needed to handle the social media pitfalls that may arise. Wisdom in the use of social media can be an important part of family restoration, and should be utmost in the minds of litigants and their attorneys, particularly to protect the children.
First, attorneys should ensure that they utilize interrogatories in their client's favor to ensure the opposing party discloses social media information, does not destroy the information, and seeks its inclusion in the custody hearing when relevant. It is important to remember that if you don't ask for the information, the other party doesn't have to volunteer it!
Second, once at trial, a discoverable item may or may not be admissible if it cannot be authenticated. Some courts have held that these documents can be self-authenticated as business records, but not all courts take this approach so an attorney must work to ensure the evidence is admissible.[3]
Evidence uncovered on the client or an opposing party's social media account will likely be considered in evaluating the best interests of the child. In previous cases the court has considered: (1) derogatory comments made by one party about the other; (2) individuals a parent interacts with and may bring around the child(ren); (3) how an individual spends his or her time and if that is a positive or negative influence on the child; (4) social media posts the child makes regarding the custody dispute; (5) allegations of cyber-stalking and repeated online contact between the parties; and (6) places where the client visits with or without the child where the record is preserved through geo-tagging via social media or cell phone applications.[4]
Finally, prior to filing a petition with the court, it is essential to advise the client to maintain a healthy social media presence and sanitize his or her accounts. Clients should consider revising friend lists, update privacy settings on all devices and applications, change passwords, and delete jointly held accounts.[5] In some cases, it may be best to advise the client to take a break from social media where you as the attorney feel that he or she may be particularly vulnerable to engaging with the other party or potentially violating a court order by making unauthorized contact, as that could lead to a contempt charge.
Ultimately, the court has recognized the best interests of the child standard not only in its handling of procedural and evidentiary matters when evaluating the factors to be considered in a custody dispute, but also regarding its ability to silence the parties on social media when their actions demonstrate the potential to cause harm to the child. If a judge is presented with evidence that a party's actions online may have harmed the child in the past, or have the potential to continue to harm the child in the future, a judge may also require healthy social media behavior as a condition that will be enforced by the court in the final custody decree. The Supreme Court of the United States has held that this does not violate the First Amendment rights of either party because the prior restraint on speech serves a compelling government interest, namely the best interests, health, and welfare of the child.[6] Additionally, the family court judge must use the least restrictive means to enact its control on a party's speech acts, taking care not to over-broadly restrain a parent from his or her speech rights
Understanding the role social media plays in a client's case will allow attorneys to better anticipate evidentiary and procedural strategies for their clients. Furthermore, attorneys should remain apprised of social media capabilities in order to better advise clients of their rights and responsibilities regarding social media use and enable the client to understand the impact that could result on his or her custody case. Wisdom in the use of social media is a critical element toward family restoration.
[1] Jaliz Maldonado, Family Law: Social Media and Divorce Cases, The Nat'l L. Rev. (Feb. 14, 2019), https://www.natlawreview.com/article/family-law-social-media-evidence-divorce-cases.
[2] Attorneys should reference state specific code for a complete list of factors that is considered by jurisdiction. This list if generally not all inclusive and may include a provision for other factors not listed in the statute but may still be raised by a party for the court's consideration.
[3] Judge Michele Lowrance and Pamela J. Hutul, Social Media in Divorce Proceedings. FamilyLawyerMagazine.com. Jul. 19, 2013, https://familylawyermagazine.com/articles/ social-media-in-divorce-proceedings/.
[4] Lynne Strober, Jennifer Presti, and Khizar A. Sheikh, Social Media and Family Law Cases, FamilyLawyerMagazine.com (May 14, 2018), https://familylawyermagazine.com/ articles/social-media-and-family-law-cases/.
[5] The Interplay of Social Media and Family Law Disputes. Law Offices of Michael A. Robbins, https://www.michaelarobbins.com/Articles-By-Mr-Robbins/Social-Media-And-Family-Law-Disputes.shtml. (last visited Apr. 8, 2019).
[6] See Neb. Press Ass'n v. Stuart, 427 U.S. 539, 559 (1976).
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