Facebook, for better or worse, has become a way of life for many people. Whether it’s posting a map of your morning run, your child’s first steps, or sharing a video of a cat falling down the stairs, the need to post, re-post and share on Facebook and other social media has become so interwoven into our daily routines that many times we fail to recognize we’re even posting anymore. Sometimes it’s important that we catch ourselves from posting about certain topics or issues, and nothing could be more true than using social media during a legal proceeding, and in particular, during your divorce or other family law proceeding.
In courts throughout the country, judges are taking people’s social media accounts and postings into consideration as evidence, particularly when it relates to a party to the litigation or an issue within the case itself. In fact, so long as a party can properly “authenticate” Facebook posts or messages, meaning establishing the messages as having been originated by that particular party at a particular time that is relevant to the proceeding, the court will consider such evidence all day long, and, in fact, such evidence is starting to have a substantial outcome on the cases in which they’re introduced.
In a recent news story I saw out of New York, the father was able to show, through his ex-wife’s Facebook postings, that the mother had been traveling extensively, both domestically and internationally, leaving the child in the care of a social worker while the parties’ four-year-old child was supposed to be under the mother’s direct care and custody. Examples of the Facebook evidence introduced in that case included posts showing the mother traveling throughout Italy and posting a picture from Boston saying, “…on the waterfront eating oysters and lobster.”
Naturally, it is safe to assume that almost every court would look negatively at this type of behavior, so it becomes important, at least during times of litigation, including the time periods immediately preceding and following the litigation, to try and self-sensor as much as possible from your social media accounts, since what these cases demonstrate is the court’s willingness, and sometimes eagerness, to hold parents accountable for behaviors that previously, before the advent of social media, would have been subject to a he-said she-said analysis. With cell phones now seemingly capturing every event, big and small, and people documenting their lives through social media, the better practice, the best practice, when it comes to social media and litigation, is to do the opposite of the old Nike ad campaign and “Just don’t do it!”
Attorney Russell J. Frank is a partner at CPLS, P.A. and focuses his practice areas on family and marital law.