Social media is an essential part of our lives. It's where we get our news, share pictures of our kids and pets, connect or reconnect with faraway friends and relatives, and announce important events in our lives. Most of us can't imagine living without it.
In a divorce, social media can act as both a life raft that keeps you afloat, and as a storm at sea that causes great destruction. If that seems a bit dramatic, remember that custody cases have been affected by Facebook posts—even posts that have nothing to do with the kids, and even when the other parent doesn't have direct access to the postings.
A 2015 case in Westchester County, New York, involved a four year old child who was in the custody of his mother. The father argued that he should have custody because the mother frequently vacationed without the child, as evidenced by her social media, and asked the court to order her to turn over her postings. The mother protested, saying that her profile was private and that the husband had been unfriended at the time the couple broke up. The judge ordered the mother to turn out printouts of her social media posts for the previous four years because the amount of time parents spend with their children is a relevant consideration in child custody matters.
Let's talk about what you should, and shouldn't, do with regard to Facebook, Twitter, Instagram, Snapchat, and other social media sites and apps when you're divorcing.
Most divorce lawyers would agree on this first "do:" do delete and deactivate your social media accounts if at all possible. It may seem unfair that you should have to disengage from something you enjoy and that offers you support during a difficult time in your life. That said, the single best way to keep social media from being a problem in your divorce is to avoid it altogether.
If you're unwilling to deactivate your accounts, then do be careful about who has access to your posts. Per the case referenced above, this isn't foolproof; there exists the possibility that a judge could order the release of posts you had not wanted exposed to a wider audience than your friends list. Still, managing your privacy settings and culling your friends list can help keep things from falling under the watchful eyes of your ex. Remember that even if you have unfriended your ex, a mutual friend with whom you remain friends online could still take a screenshot and bring something to your ex's attention.
That leads to our next "do:" do be mindful of what you post in the first place. It doesn't need to be a video of you tossing back shots of tequila in a strip club to be damaging to you. If it helps, imagine your divorce or custody judge reading over your shoulder as you post. Is whatever you are saying or showing likely to give the judge a favorable impression of you, or an unfavorable one? Most of us curate our social media posts to impress someone, like friends or a potential romantic interest. Yours should be calculated first and foremost to impress the judge. Post the picture of you and your kids volunteering at the soup kitchen. Skip the one of you passed out on a couch at your friend's party.
Maybe you wouldn't post a picture of yourself in an embarrassing situation, but a friend, thinking it's funny, might. So do ask your friends to avoid posting pictures of you without your advance permission, and do avoid situations which could lead to pictures or posts that don't reflect well on you.
It's not just pictures that pose a problem. Words that come from your own mouth (or fingertips) can be even more damning. We are so used to living our lives online that we often don't censor ourselves—but often, we should. It's natural during a divorce to have less-than-loving thoughts about your ex. Confide those to your mom, your best friend, your therapist, and not the internet.
When judges are making custody decisions, one of the things they typically consider is the willingness of each parent to foster a good relationship between their child and the other parent. If your Facebook wall or Twitter is full of nasty comments about your co-parent, the court may conclude that you are not interested in helping your child have a good relationship with their other parent. Right or wrong, the court may also believe that you are sharing those hostile thoughts with your child. So a big "don't" is: don't say anything negative about your ex on social media.
Even if it never comes to the eyes of a judge, there's a good chance your ex's lawyer will see it, and find a way to use it. A survey conducted by the American Academy of Matrimonial Lawyers among its members indicated that over 80% used evidence from social media in their cases. This evidence could include photos showing a party using alcohol or drugs, or flaunting expensive new purchases when they claimed they didn't have the income to pay child support. It could include posts smearing an ex, talking about what a drag it is being a parent, or bragging about fooling the judge.
Nobody's perfect, and none of us would want to be judged on our worst moments. You should assume that your ex's lawyer will be looking for ways to paint you in the most unfavorable light possible. Don't hand him the brush.
If you have questions or concerns about how your social media use might impact your divorce or custody matter, we invite you to contact our law office to schedule a consultation.