Text messages and social media are popular ways of sharing information and communicating with family or friends. However, many people are unaware that texts, posts, emails, and other forms of electronic communication have become a critical source of evidence in family law cases.
If you are going through a divorce or a child custody case, you should be careful about what you share online. If possible, refrain from posting on social media until your family law case is closed. Even a seemingly innocent comment or post can be used against you in court.
The Use of Electronic Evidence in Family Law Cases
Social media platforms and text messages have become an everyday part of many people’s lives. It is estimated that, during 2023, some 4.9 billion people will use social media globally.
While there are many advantages to these forms of communication, texting and posting online can have a negative impact on your divorce or child custody case. When deciding on family law cases, the court considers a person’s behavior and conduct.
During child custody or divorce proceedings, the other party’s lawyer can file a subpoena for your text messages and social media activity. This information can then be used to paint a negative picture of your character.
Proof of Financial Situation
Are you going through a divorce process involving alimony or a child custody case involving child support? If so, you will likely need to provide copies of bank statements, W-2 forms, tax returns, and other proofs of income.
These documents show how much money each party earns and how much was saved or spent during their marriage. The judge will use these financial records to determine alimony and child support orders.
If one of the parties turned in false documents or claimed not to have enough income to make certain payments, social media can be used to disprove this information. Posts of luxury cars, lavish vacations, and other expensive purchases can be compiled as evidence against a person who is trying to get out of paying spousal or child support.
Evidence of Infidelity
A person going through a divorce may not post pictures or comments on social media about his or her new love interest, but his or her new partner might. These third-party social media posts could also be subpoenaed and used as evidence that a spouse was cheating.
Online dating apps are commonly used nowadays to meet new people and find potential partners. However, having an online dating profile before a divorce is finalized may provide evidence of infidelity.
In addition, people tend to exaggerate the truth or outright lie when creating a dating profile in order to present themselves in a better light. If a person says something in a post or text that differs from what he or she said in court, this could have a negative effect on the case.
The Consequences of Sending Threatening Messages
The reality is that not all relationships end amicably. When a couple is going through a divorce or child custody case, they can sometimes get into heated discussions over text messages or social media.
The back-and-forth could escalate to one or both parties sending hateful, angry, threatening messages. A person may even threaten violence against his or her ex. These electronic communications can provide evidence that a spouse was physically or verbally abusive.
Threatening messages can be especially detrimental to those involved in child custody cases. A judge must keep a child’s best interests in mind. Threatening statements or posts can indicate that a parent is dangerous or irresponsible.
This could lead the court to award custody to the other parent and limit the time you spend with your child. Additionally, threats of violence could have further legal implications. A restraining order or a criminal case could be issued against you.
Are All Text Messages Admissible in Family Law Courts?
Texts have become a common form of evidence in many custody and divorce proceedings. Whether text messages, emails, or direct messages, any electronic communication that can be used as evidence in a family law case will depend on state laws and the judge’s ruling.
In order for a text to be admissible as evidence, it must be authenticated and relevant.
You can’t just show the court a text message and claim that it was sent by your ex. You and your attorney will need to present evidence that the text was written and sent by the person you claim it was sent by.
The following are ways a text may be authenticated:
- The other party admits to sending the message
- There is an eyewitness who saw the person writing and sending the message
- The context of the message indicates that it was a response to an original message
- Only the sender could be aware of the subject referenced in the text message
Any text messages that you want to include as evidence must be relevant to your case. Does the text message help support or disprove your claim? If not, it probably is irrelevant to your case.
For example, if you are fighting for custody of your child, any texts proving domestic abuse or substance abuse would be relevant to your case. However, messages showing that your ex is a poor cook or has bad taste in sports teams would not be relevant.
If you are wondering if any texts or direct messages your ex has sent will be admissible in court, contact an experienced divorce attorney. An attorney can examine the messages to see if they are authenticated, relevant, and beneficial to your family law case.
Unlawfully Acquired Electronic Communication Is Inadmissible as Evidence
Texts, emails, and posts will not be admissible as evidence if stolen or obtained unlawfully. For example, if your ex-spouse hacked into your smartphone or email, any information obtained is unlikely to be allowed in court.
It is important to make sure anything you do to obtain electronic evidence against your ex is done legally. Otherwise, the information will be worthless to your case, and you could be subject to sanctions from the court.
Text Messages From a Third Party
Typically, only texts between you and your ex will be admissible as evidence in court. Text messages from neighbors or friends might not be allowed as evidence. Messages sent from third parties could be classified as “hearsay.”
For example, if your neighbor sent you a text saying he saw your ex doing drugs at a party, the judge will probably not allow it as evidence. However, the judge could admit the text messages if your neighbor agreed to testify in court.
Common Types of Texts Admissible in Child Custody Cases
Whether or not certain texts are admissible in custody cases depends on different factors. Some of those factors are jurisdiction and the circumstances of the case.
Texts that show the following are commonly admissible in cases involving custody of a child:
- Behavior and character: Texts that show anger issues, mental instability, abuse, or hostile behavior
- Agreements and scheduling: Messages exchanged between parents about payment of child support, visitation, custody, healthcare, schooling, or other responsibilities
- Concerns about the other parent: Text messages regarding substance abuse, child neglect, or other valid concerns about the other parent
Types of Posts That Can Influence Your Child Custody Case
Posts on social media can be used as admissible evidence to show that a parent is unreliable or unfit to care for a child. After reviewing social media posts and other evidence, a judge may decide that it is in the child’s best interest to have limited custody with the parent.
Types of posts on your social media account that could have a negative effect on your child custody case are:
- Pictures showing drug or alcohol use: Posts of you using drugs or alcohol can be used to indicate a lack of responsibility, used as proof that a child is not safe with you
- Explicit or provocative pictures: Such pictures may be considered inappropriate and affect child custody determinations
- Negative comments: Using social media to speak negatively about your ex, vent about your attorney or the judge, or complain about your friends, can lead to questions about your judgment
- Pictures revealing you are in a relationship with someone potentially dangerous to your child: Posts that show you are in a relationship with a person who is a registered sex offender or someone of questionable character can be detrimental to your case
- Posts that show your home is unsafe: Things in the background of a picture, such as drug paraphernalia or an unlocked gun cabinet, could be used to show that a home is unsafe
Suggestions for Using Social Media During Family Law Cases
A person’s social media accounts may be heavily scrutinized during a child custody or divorce case. Until your case is finalized, it is important to be careful about what you post on social media sites.
Consider the following tips for using social media during a child custody and/or divorce case.
Take a break from social media
It may be best to avoid social media altogether until your divorce or other family law case is finalized. Staying off social media eliminates the potential repercussions of its use.
An additional benefit to taking a break from social media is that you will be able to focus more on your children and your own self-care during this stressful time.
Set your privacy settings to the highest level
If you still decide to use social media during your divorce, one step towards managing your online presence is to put your social media security settings at the highest level. However, even with privacy settings in place, you cannot assume that anything you post online is truly private.
Ask your friends and family to hold off on tagging you in any posts until your case is settled. Unfollow or unfriend anyone whom you will not be friends with after the divorce, and those whom you do not trust to respect your privacy.
Change your passwords
It is important to make sure your ex does not have access to any of your accounts. Change your passwords on your email, phone lock screen, and social media apps.
Make sure to sign out of any accounts on electronic devices that you previously shared with your ex that are still in his or her possession.
Do not delete posts
Consult with your family law attorney before deleting anything you have posted on social media websites. Keep in mind that nothing posted on the internet is ever guaranteed to be permanently gone. For example, a friend or family member may have already taken a screenshot of your post and texted it to your ex before you deleted it.
Some states have rules requiring parties involved in divorce or custody proceedings to preserve evidence that might be relevant to their cases. Deleting posts could be considered “evidence tampering.” This could lead to fines and other penalties.
Discuss before posting pictures of your children
Have you and the other parent discussed whether to post pictures of your children online? If not, consider discussing the topic with the other parent and try to come to an agreement.
You should also closely monitor what your children are doing on social media during your divorce. You could be liable for your child’s posts and actions.
Search your name online
It is helpful to know what is being said about you online that could be used during divorce or custody proceedings. Use a search engine such as Google. Look up your full name and see what comments, pictures, and posts are out in cyberspace that you may have forgotten or may not have known about.
Monitor your children’s social media usage
A divorce or custody battle is not only a stressful time for parents but for children as well. Children, especially teenagers, may deal with the situation by posting and venting about their family situation on social media.
It is important to talk to your children about their social media usage. Unfortunately, something they post in a brief moment of sadness or anger could later be used as evidence in court.
Do not discuss your case
Refrain from posting any information about court dates, mediation arrangements, the judge’s name, or anything else confidential to your case on social media.
It is also important not to post information about conversations with your divorce attorney. This could be considered a waiver of attorney-client privilege and make things said to your attorney in private now admissible in court.
The Attorneys at Brown Family Law Are Here to Help
It only takes seconds to type out and send text or post on social media. However, one post or message can have a negative effect on your custody or divorce case.
It may be in your best interests to avoid posting on social media until your case is finalized. If you need to text your ex about anything, be careful that the content you send can’t be misinterpreted and used against you in court.
If you have questions about how using social media or other electronic communications could affect your custody case or divorce proceedings, contact Brown Family Law today. During your initial consultation, we can provide you with the advice and legal guidance you need.
Call us at 801-685-9999 or complete the contact form to schedule a no-obligation consultation and case evaluation.