The increase in the use of social media over the last several years has changed the practice of family law. Social media has provided opportunities for people to share their feelings and air their grievances 24 hours a day, often saying things that may come back to haunt them during legal proceedings.
Not only does the use of social media make it easier to gain information about opposing parties and their conduct, but this information is generally discoverable and admissible in a court of law. Trial judges will regularly consider not only the specific evidence presented during a hearing, but also a party’s character as a result of the information that is obtained. As attorneys, we need to ask ourselves: What do we need to explain to our clients about social media? Should we require access to a client’s social media accounts in our engagement letters? What beneficial information can we gain from opposing parties as a result of social media? How do we discover this information and how do we use such discovery to strengthen our client’s case?
Given the widespread use of social media among almost every age group, it is critical to ask family law clients about their participation in social media and advise them about the potential harms of continued use during litigation. We must ask if they have Facebook, LinkedIn, Myspace or Twitter accounts and if they post content (images, videos, etc.) to them or on Instagram, Pinterest, Pheed, Flickr, YouTube or Snapchat — just to name a few. Do they blog, participate in online chat groups or participate in any other forms of online communication other than the use of email? If the answer is yes to using any of these platforms, matrimonial attorneys should request access to review their accounts and to view what they are posting on a regular basis. It is also important to ascertain how the client has set up the privacy settings on his or her social networks to prevent the general public from viewing their postings and images. Even if the privacy settings are as secure as possible, it is not a license to post items that can be used as adverse evidence during future court proceedings.
In support matters, a party will often claim economic hardship, citing the current state of the economy, loss of employment or increased cost of living. However, that same individual may then post something on a social media profile — such as photographs from a luxury vacation, the purchase of a new high-end vehicle or a statement about going to see the opera with box seats — that contradicts the assertion of decreased income. This information can be discovered by the opposing party and then used at a support hearing to defeat a decreased income claim.
Social media postings also can be significantly harmful in custody proceedings. Custody matters are one of the most complex, expensive and time-consuming areas of family law practice. Every case is based on a different set of facts and circumstances related to a specific family. In Pennsylvania, when making a custody determination, the ultimate standard is the best interest of the child. Accordingly, there is great latitude for judges to consider various forms of evidence when rendering a custody award. Photographs or comments on social media sites that show a parent partying excessively, making negative and disparaging comments about the other parent or posting about how difficult it is to manage the children’s schedules may be one of the determining factors in a custody battle. Not only does such evidence come first-hand from the parent who makes such a posting, it can also be indicative of a parent’s character, emotional state or parenting philosophy — all things that will be considered by a judge when reaching a custody decision. Consider how a custodial parent’s Foursquare check-in at an alcoholic drinking establishment might be viewed by a judge who is hearing a custody matter. Additionally, postings by a child also can be harmful during custody proceedings. Think about the situation where a child is posting content online at 1 a.m. on a school night. The other parent can claim lack of supervision and control over the child.
Recently, in a case of first impression, the Georgia Court of Appeals upheld a lower court’s decision directing the parties in a custody battle to avoid communicating with each other through social media. In Lacy v. Lacy, — S.E.2d — (Ga. Ct. App. 2013), the parties were involved in very contentious divorce and child custody proceedings. After a hearing related to a contempt proceeding, the lower court judge entered an order that prohibited the parties from "posting matters about each other or their current litigation on Facebook or other social networking sites." (See Lacy, Case No. A1212341.) The father in that matter challenged the decision by the lower court judge restricting access to social media, but the appellate court found no error and upheld the decision.
Although there is no similar authority in Pennsylvania regarding a party’s conduct on social networking sites, our courts would likely make such a decision based upon what is in the best interest of the children. Certainly, there is no benefit derived from either parent publishing derogatory information about the other that might be accessible to their children, extended family, colleagues, classmates or friends, today or in the future. As social media becomes an increasingly popular mechanism for communication between individuals and the public in general, such restrictions by the courts will become more necessary.
Importantly, information on social networking sites has become fairly simple to obtain by the opposing party in divorce matters. As with other subjects of discovery, information about a person’s social media accounts can be obtained through the use of interrogatories, requests for production of documents, requests for admissions, subpoenas and depositions. The options are practically endless. These discovery mechanisms allow a party to obtain important information, such as user names and passwords, postings, photographs and videos related to the opposing party or the children, as well as documentation regarding online activities, connections, communications and content. At a hearing, this information can be introduced into evidence to support a party’s position, challenge the credibility of a witness or prove factual information that might have otherwise been unsupported by documentation.
As social media becomes a more integral part of daily life, judges appear to be more accepting of evidence obtained on social networking sites. Documentation of a party’s behavior that previously was not evident or easily obtainable by an opposing party is now accessible with the simple click of a mouse. Additionally, photographs, communications and postings by an individual on social networking sites offer extremely telling information that can be very harmful during the course of litigation — particularly divorce and custody proceedings.
In an ideal world, parties in the midst of litigation — particularly family law proceedings — would not maintain a personal presence on social networking sites. There is a great level of risk associated with postings that might seem innocuous and innocent when a person sends a simple statement or photograph into cyberspace. One small slip of the tongue, check-in or comment made in a moment of frustration or anger can land in the wrong hands and spiral out of control in the blink of an eye. It is up to family law counsel to educate our clients that protecting themselves, their children and their assets during the course of family law proceedings is more important than any status update, tweet or shared photograph will ever be.
Although an individual’s social media speech is protected by the First Amendment, it is important to be aware that the potential negatives may outweigh the positives of this type of communication. Our children learn this difficult lesson through social interactions on a regular basis. Now, adults are learning this same lesson in litigated matters across the country. The message to the adults is to think before you post. However, don’t be surprised if your clients put up a fight. There are many studies that indicate an ever-growing global addiction to social media interaction that is unlikely to disappear anytime soon. •
Hillary J. Moonay, an attorney with Williams & Hand in Bucks County, focuses her practice exclusively in the area of family law, where she handles all phases of the negotiation and litigation of domestic relations cases, including divorce, child custody, child support, alimony/spousal support, equitable distribution, prenuptial and postnuptial agreements and related issues. She can be contacted at email@example.com or 215-340-2207.