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Published on August 7, 2023 · 6 min read
Family law cases are complicated–and many believe the rise of social media has complicated them further. We analyzed recent cases where social media played a significant role and put together some practical tips for attorneys looking for guidance.
Social media evidence’s growing influence on family law
With the surge in social media usage, platforms like TikTok, Instagram and Facebook have gained immense popularity, becoming hubs of self-expression for billions of people. Since we already know what’s on the internet, stays on the internet—family law attorneys have witnessed a significant increase in how much relevant evidence they can obtain from these platforms.
The American Academy of Matrimonial Lawyers, according to Family Lawyer Magazine, claims that 80% of the divorce attorneys they surveyed declared a huge increase in evidence found on social media over the last half-decade.
It’s not only the public-facing content that they can gain information from. Private messages and videos are also offering lawyers insight into various aspects of individuals’ lives. From behavior and relationships to parenting styles, lawyers are finding a treasure trove of information online, all of which may be pertinent in divorce and child custody cases.
Now more than ever, it’s become essential for attorneys to recognize and leverage the evidentiary potential of these platforms.
The American Academy of Matrimonial Lawyers, according to Family Lawyer Magazine, claims that 80% of the divorce attorneys they surveyed declared a huge increase in evidence found on social media over the last half-decade.
It’s not only the public-facing content that they can gain information from. Private messages and videos are also offering lawyers insight into various aspects of individuals’ lives. From behavior and relationships to parenting styles, lawyers are finding a treasure trove of information online, all of which may be pertinent in divorce and child custody cases.
Now more than ever, it’s become essential for attorneys to recognize and leverage the evidentiary potential of these platforms.
Noteworthy cases where social media evidence was used
Dexter v. Dexter
In this 2007 family law case—decided by the Court of Appeals of Ohio. 2007 – Ohio – 2568, ¶ 1, 2007 WL 1532084—a mother was declared to practice sadomasochism. She challenged the accessibility of the evidence (which was found on her blog and social media. But the court ruled she could have no expectation of privacy since she had made her lifestyle public.
Shaw v. Young
The Court of Appeals of Louisiana in 2016 held that the husband in a family law case was sending “repeated emails and text messages to his wife, and his repeated postings on his social media account about her constituted cyberstalking, which qualified as domestic abuse.” 199 So.3d 1180 (La. App. 4 Cir. 2016). The Court found that since the husband didn’t use privacy settings, and his posts and pages on Facebook were public, he was openly threatening his then-wife.
Legal considerations and challenges of using social media evidence
While these platforms offer a wealth of information that may be relevant to family matters, using that information raises both legal and moral considerations.
One key concern is the admissibility of the evidence. As an attorney, you must establish the credibility of any content you find on social media platforms, like TikTok, and verify the source to ensure it hasn’t been changed or fabricated.
Next, privacy concerns about social media posts beg the question: ‘How deeply into someone’s social media can you go?’. While you may get information pertinent to your case, you may also find that posts, messages, and videos contain personal information about third parties not directly involved in the case. Balancing every individual’s right to privacy with your need for evidence can be a delicate task.
Finally, social media content (blogs, photos, videos, and the like) can be easily deleted or hidden. This makes it difficult to collect and preserve what you find. As technology and social media continue to evolve, legal professionals must be vigilant in upholding the integrity and fairness of the justice system.
One key concern is the admissibility of the evidence. As an attorney, you must establish the credibility of any content you find on social media platforms, like TikTok, and verify the source to ensure it hasn’t been changed or fabricated.
Next, privacy concerns about social media posts beg the question: ‘How deeply into someone’s social media can you go?’. While you may get information pertinent to your case, you may also find that posts, messages, and videos contain personal information about third parties not directly involved in the case. Balancing every individual’s right to privacy with your need for evidence can be a delicate task.
Finally, social media content (blogs, photos, videos, and the like) can be easily deleted or hidden. This makes it difficult to collect and preserve what you find. As technology and social media continue to evolve, legal professionals must be vigilant in upholding the integrity and fairness of the justice system.
Your clients use social media…now what?
As an attorney, you can advise your clients on what they should, and shouldn’t, do regarding social media use during their family law case. Here are some tips you can give them:
Post cautiously: Encourage your clients to refrain from posting anything that could be used against them or misinterpreted. Even the most seemingly innocent posts could be misconstrued in court. If they’re ever in doubt, they should consult with you before posting.
Adjust privacy settings: Ask clients to review and update their privacy settings, limiting who can see their posts. It’s important to note that even private posts may be admissible during court proceedings.
Establish clear guidelines for online communication: These should include respectful conduct, boundaries, and expectations for both parents and children.
Use monitoring software or applications to ensure a safe online environment for children: This proactive approach helps to protect the child’s emotional well-being during divorce proceedings.
Educate yourself about what platforms your kids use and the associated risks: Parental responsibility in fostering digital literacy is important.
Emphasize alternative dispute resolution methods: Options such as mediation may mitigate conflicts arising in online communication.
Consider seeking temporary orders: These may help address online exposure concerns until a permanent custody arrangement is reached.
Leveraging social media evidence in court
To effectively present social media evidence in court, it’s always best to follow a strategic and methodical approach. These steps provide guidance on how to do so:
First, ensure the authenticity and integrity of any social media evidence you collect by documenting it. This may include taking screenshots of relevant posts or using software to download the content in a forensically sound way.
Next, establish a chain of custody to demonstrate that the evidence hasn’t been tampered with or modified in any way.
In court, use slideshows or video clips to highlight key pieces of social media evidence and make it more accessible to judges and juries.
To overcome any potential admissibility problems, ensure you’re well-versed in any applicable laws governing the use of electronic evidence in your jurisdiction. (Additionally, look up precedents where such social media has been used in cases similar to yours.)
Ensure you’re prepared to authenticate your evidence through witness testimony or by obtaining an affidavit from the creator of the content.
Wrapping up: social media is not science
Social media is art. It’s subjective and open to interpretation in the same way all refutable evidence may be. Ensure you set clear precedents and have done legal research as you collect, preserve, and determine how to use it. This will help you use social media to ultimately influence the outcome of your clients’ cases.
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