Monday, July 30, 2012

SOCIAL MEDIA & CUSTODY - How To Traverse the Minefield

This is already an old story, but it bears repeating:  How you use social media could determine whether you win, or lose, custody of your children.

Today, we all use social media.  It is how we stay connected to friends and family; how we network; and often, it is how we communicate our feelings and opinions.  But here's a warning:  Comments and photos posted on social media sites like Facebook, Twitter, Linkedin, Match.com, and Blogs are considered to be admissible evidence in a custody case, and they have become a treasure-trove of information for lawyers, investigators, and the courts. In a contested custody case, your decision about what to post, and the type of pictures to post, could be the difference between keeping your children -- or losing them to the other parent.

When we sit down at our computer, there is a false sense of anonymity.  When we put our thoughts on a Facebook page, it feels as though we are just talking to our closest friends . . .  all 956 of them.  The problem is that these "Friends" may include our ex-spouse, or some of his/her family or friends.  They may include "Friends" that we don't know very well, or that we don't know at all.  Therefore, it should not be surprising that comments or photos we post on social media could fall into the hands of people who might use them to do us harm.

In the recent Iowa case of Bates v. Bates (2012) a mother posted on Facebook that the children "have a really bad father."  In emails, she threatened to alienate the children from their father; and in one, she stated: "When this is over you'll be lucky if you get to talk to the kids on the phone."  The Facebook post and emails were noted by the Court in its decision to take the children from their mother and award physical custody to the father.

In one of my own cases, involving spousal maintenance, a husband claimed to be earning very little income, yet we were able to show that he posted, on Match.com, that he earned over $150,000 per year.  In another case, a father who denied drinking or partying posted a Facebook photo of himself and friends with liquor bottles in their hands, making gang-signs.  And, in a third custody case, a "significant-other" posted a picture of the parents' two year-old daughter sitting, all by herself, atop a very large horse (with no adults nearby).  Needless to say, all of these people hurt themselves by the way in which they used social media.

If you are involved in a divorce or custody case, here are some important tips:

1.  Be careful who you "Friend" on Facebook. (We all want to have lots of friends, but some of these "friends" can and will hurt you.  That "friend" who you don't really know could even be a private investigator or someone who is aligned with your your former spouse.)

2.  Remove your spouse or ex-spouse - or the other parent, if you are not married - from your "Friends" list; and consider removing his/her friends and family members, as well.  (It is not uncommon for one of these types of "friends" to pass along a copy of your comments or photos, and before you even suspect it, that "tweet" or Facebook pic shows up in court and is used as evidence against you at trial.)

3.  Do not "tweet" or post on Facebook, when you are angry.  (That old "Count-to-Ten" rule is good advice and still applies.)

4.  Do not post derogatory comments about your spouse, ex-spouse, or the other parent, or about his/her family or friends.  (These comments could be taken out of context, or otherwise used against you in a court hearing.)

5.  Do not post derogatory comments about yourself, your family or friends, or provide information which could be construed as negatively reflecting on your parenting skills.

6.  Do not post comments or photos of yourself or your family or friends doing anything illegal, or which may appear to be illegal or compromising.  (The office Christmas party might have been a blast, but a photo of you kissing your boss, with a bottle of whiskey in your hand, may not be viewed as innocent fun by a judge.)

7.  Do not post negative or hurtful comments about your children.

8.  Do not post false statements about your job, or your income.  

9.  Do not post information about your divorce or custody case.

10.  Do not post information about conversations with your attorney.  (This could be construed as a waiver of your attorney-client privilege, making admissible things that were said in confidence to your lawyer.)


Social Media is an important part of our lives, and it's fun.  Like fire, it is an extremely useful tool -- but if you're not careful, you can be badly burned.

So, here's my last bit of advice, and my best:  Always think before you post.



Gary Frank is an Arizona Family Law attorney with over thirty years of experience as a courtroom litigator, a mediator, and a Judge Pro Tempore.  We deal with divorce, custody, paternity, spousal support and child support, modification actions, enforcement actions, relocation/move-away cases, grandparent and non-parent visitation and custody cases, and all matters relating to families and children.  We have offices located throughout the Phoenix Metro Area for your convenience.  If you are in need of a consultation, do not hesitate.  Call today.  You can reach us at 602-383-3610; or by email at gary.frank@azbar.org; or through our website at garyfranklaw.com.  We're standing by ready to help you.