By Adam J. Turbowitz, Family Lawyer
We share so much on social media. We post our life events, achievements, celebrations, and tragedies, and we communicate with each other through status updates and photos. But while sharing personal lives online has become the norm, it is crucial to be mindful of your online presence during (and even in advance of) child custody proceedings.
A person’s social media presence may be heavily scrutinized during a child custody case; a questionable online presence can impact a child custody case. Exercising discretion on social media can help keep children safe and insulated from litigation between their parents, and is generally a sound legal strategy. In addition to exercising discretion as to what they post on social media, parents should also be aware of what others post about them, which could be equally as problematic.
Tips for Using Social Media During Child Custody Cases
It would be wise for parents involved in a child custody case to follow these 10 tips for social media use during – and for some time after – divorce.
1. Go Cold Turkey
The pendency of a child custody case is an ideal time for a social media cleanse. Staying off social media can eliminate the many potential repercussions of its use, including its effects on the relationship between the child and each parent, the parents’ relationship with each other, and the outcome of the litigation.
2. Do Not Delete
Although a routine social media cleanse might be a good idea, you should consult an attorney before deleting anything if you are involved in a pending or contemplated lawsuit. Many states have rules requiring parties to custody proceedings to preserve evidence that might be relevant to the issues in custody litigation. Deleting evidence while a lawsuit is pending or threatened could have severe consequences for a case, including the imposition of monetary or other penalties.
3. Less is More
If staying off social media is unrealistic, you should limit their online presence. Your co-parent, their friends, family, and even their attorney may have access to your online profile, so it is essential to ensure that all online profiles are private. In addition, anything posted on social media may be used in litigation, and even seemingly harmless posts can be taken out of context.
4. What Happens on the Internet Stays on the Internet
Remember that everything posted online is permanent. And in the age of screenshots, nothing is ever really private. So assume there is a record of everything you post on the internet, even if you subsequently delete it. Do not post anything that you would not want the judge presiding over your custody case to see!
5. Keep it to Yourself
You should avoid discussing your child custody proceeding online, even with close friends and family. Doing so can have repercussions for personal relationships and in court. Additionally, judges generally frown upon litigants publicizing the issues in their cases. You should avoid doing anything that may draw the judge’s ire.
6. If You Have Nothing Nice to Say, Don’t Say Anything
You should never badmouth the other parent, whether directly or indirectly. That includes posting cryptic quotes, memes, song lyrics, or even what you think are harmless jokes. Generally, the primary concern in a child custody case is the best interest of the child. An important consideration in the best interest analysis is whether a parent is willing to foster the relationship between the child and the co-parent. In addition to negatively impacting a custody case, this kind of behavior may be detrimental to the child’s relationship with either or both parents.
7. Talk it Out
Many parents feel strongly about keeping photos of their children off social media for safety and other reasons. Discuss the topic of posting pictures of your child with the other parent, and try to reach an agreement. If appropriate, consider asking the judge for assistance.
8. Don’t Incriminate Yourself
Allegations of substance abuse are common in custody cases, whether justified or as an unfortunate litigation tactic. A parent may very well use photos of the other parent consuming (or even in the presence of) alcohol, drugs, or other controlled substances in a custody case, which could significantly impact a custody determination.
9. Flashiness May Cost You
Social media accounts are curated to show a version of a person’s life that they want others to see. As a result, people regularly post photos of meals at fancy restaurants, lavish gifts, extravagant vacations, and other luxuries – regardless of whether that is their day-to-day reality. Since financial issues often play a substantial role in child custody cases, ensure that your finances are in order and that any child support payments are up to date before posting about such luxuries.
10. You Are the Company You Keep
In addition to being aware of privacy settings, you should be mindful of your followers and the people followed by the other parent on social media. If you and your co-parent share some of the same online followers, your co-parent may be able to see posts liked or commented on by those shared friends, so consider pruning your followers to actual friends and family you don’t share with the other parent. Another concern is that belonging to a discriminatory, dangerous, or radical Facebook group, for instance, may impact a best-interest analysis in a custody case. And while internet “friends” may actually be strangers, the optics of following or being followed by dangerous individuals or groups may bear upon your fitness as a parent.
Adam Turbowitz (JD, LL.M.), a partner at Boies Schiller Flexner, represents clients in all aspects of complex matrimonial and family law cases. Adam is a skilled litigator, and he also holds a Master of Laws in Taxation, allowing him to thoughtfully analyze tax-related issues that arise in matrimonial disputes. www.bsfllp.com