Social Media Wins — and Loses — Family Law Cases
The ubiquity of social media is proving to be a goldmine of evidence — but not just for cops and prosecutors. Social media is has begun playing an increasingly important role in family law cases.
While it might be amusing to your friends to post pictures of your latest happy hour high jinx on Facebook, and while it might be very tempting to relate in 140 characters or less what a jerk your soon-to-be-ex is on Twitter, if you’re involved in any kind of family law case, you should think again.
Facebook Family Follies
Reports of attorneys mining Facebook for evidence in family law cases are growing.
In a child custody case, a father used evidence from Facebook to show that the mother of their children was spending her time playing online games instead of getting them to school on time.
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And law enforcement investigators recently served a warrant on Facebook recently and got access to pictures, comments, messages, interests, IP addresses and the friends’ list of Raul Cardona Jr., a fitness trainer to the stars in Hollywood who is a deadbeat dad back home in Milwaukee. After getting the information from Facebook, investigators could file an arrest warrant for Cardona, who owes more than $100,000 in child support payments.
“We have used Facebook in a number of cases,” confirms Erik W. Newton, a partner with the family law firm of Heath-Newton LLP in San Francisco. While “there is inherently a hearsay problem with such evidence,” Newton says, it can be admissible if “a proper foundation [is] put forth.” Also, he adds, “in family court, judges often exercise their discretionary powers to consider ‘relevant’ evidence that would normally be inadmissible.”
Newton points to a domestic violence case in which his firm used evidence against the opposing party, a former high school teacher who had posted status updates to her Facebook account detailing her drunken exploits, including going to school functions drunk, and flaming her partner. She was friends on Facebook with many of her now-ex students and her children.
Another case was similar, Newton says, but involved child custody: “The mother in that case lost custody,” he explains. “The result was largely based on the use of her Facebook postings showing her drunk and partying at times she was supposed to be caring for the child.”
Counseling for Oversharing
People can’t seem to stop sharing, and it’s changing the way family law is being practiced. “Positive or negative, it’s inevitable, and we all need to get ready for it,” Newton says of the use of social media in the courtroom. “I happen to believe it’s a good thing — the more evidence we have to make good decisions the better.”
His firm now counsels clients specifically about social media. “We advise all of our clients to only post something they would feel comfortable seeing printed in their local newspaper. It’s public, and they need to acknowledge that,” he explains. “Also, we advise everyone to change passwords regularly and to increase their security settings to the most conservative. We also advise clients to review the social accounts of their opposing parties and take screen shots of anything useful.
“Consumers of these services need to become more savvy and circumspect about what they post for public consumption,” he warns. “The reality is that nothing posted online is private.”
If you’re concerned about your or your partner’s use of social media and may become involved in a custody proceeding or divorce, contact a family lawyer on Lawyers.com to talk about your options.