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Could Social Media Cause You to Lose Custody?

Social networking has exploded in recent years, with millions of Americans and citizens around the world joining sites like Facebook, MySpace and Twitter, or even starting their own blogs.  In fact, social networks are truly becoming extensions of our everyday lives.  However, as these websites continue to grow in popularity, many users are finding that the sites are affecting their lives in ways they never imagined.

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The use of Facebook in family court proceedings is becoming somewhat of a norm.  Unlike criminal or other civil cases where judges remain  fairly strict about discovery, family court judges have to this point been pretty relaxed concerning the allowance of Facebook photos and posts as evidence in family court cases.  In fact, some family law firms are even creating new departments for the sole purpose of controlling their clients’ social media accounts.

During divorce or child custody proceedings, the seemingly mundane details of your life can be misconstrued and even prove detrimental to your case. Social media posts and comments can provide damaging information for opposing counsel in family court proceedings.  Anything you post may be used as evidence against you, from status updates to pictures and everything in between.

California child custody laws focus on the best interests of the child.  Such an investigation usually includes an examination at whether one parent is willing and able to help his or her child maintain a good relationship with the other parent.  Therefore, public displays of animosity against another parent on a social media site can be harmful when it comes to determining child custody arrangements.  Additionally, the social life of the parent can be a factor in the custody decision.  Posting pictures of a night out with friends or other social activity may raise questions about a parent’s actions or contradict previous statements which may influence a judicial determination.  Even though it may be completely innocent behavior, comments and images gleaned from these social media sites can paint a deceptive picture.  This is especially true in the courtroom where the only thing the judge has to go on is the evidence presented to him or her–they do not know those in front of them personally.

Many individuals incorrectly believe that they can keep private information on social networking sites.  That such information will be protected as long as they block their spouse and his or her close friends from seeing what they post.  If you are contemplating or have already filed for divorce or child custody it may be smart to terminate ALL social networking sites, Twitter accounts and blogs to avoid even the possibility of revealing information that may later prove to be harmful.  However, if you choose not to deactivate social media accounts (or at a minimum temporarily abstain from using them), here are some guidelines to follow:

  • Remove your spouse or ex-spouse, his/her friends and family from your “friends” list on Facebook and other accounts.  Even people who appear to be your “friends” may pass along posted information to opposing counsel.  Also, be careful who you “friend,” as it may be a private investigator or someone who is aligned with your spouse or ex-spouse.
  • Do not post any negative, derogatory or slanderous comments about your spouse, ex-spouse or his/her family and friends.  These posts may be taken out of context when read to the judge or jury by opposing counsel,
  • Do not post any negative comments about your children.
  • Do not change your status to “single” or “looking for a relationship” if the divorce is not final.
  • Do not post photos or comments about yourself, family members or friends doing anything illegal, that might appear to be illegal, or is otherwise compromising.
  • Do not post photos or comments about yourself, family members or friends drinking alcoholic beverages or appearing to be intoxicated. To a judge, this is not recreational fun, but irresponsible behavior.
  • Do not post comments that include foul language.
  • Do not post photos or comments about your significant other or anyone you may be dating.
  • Do not post comments about your divorce or custody proceeding.
  • Finally, and perhaps most importantly – NEVER post any comments about what you discussed with your lawyer!
    There are several inherent risks in using social media sites; risks which are elevated exponentially when going through a divorce or child custody proceedings.  For motivated litigants, such sites can provide evidence to use against an opponent and few litigants are more motivated than warring exes.  Therefore, the Orange County and Riverside Law firm of Don Ho, LLP would like to share one piece of advice: If you have a pending divorce or child custody case, simply assume that anything sent in an email or put onto a social media site may eventually be seen by everyone and that it is best if you simply terminate ALL social networking sites, Twitter accounts and blogs for the duration of the case.
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