Miranda warnings are a bedrock principle of our criminal system that they are included in some manner in so many police and courtroom dramas. However, the statement “what you say may be used against you in a court of law” has deeper implications that what may occur in a criminal case. What people say and do on social media may also have consequences in family court as well.
Essentially, a growing number of courts are accepting and relying upon evidence derived from Facebook, Twitter, and other social media platforms to make decisions on child custody, parenting time and even child support disputes.
For instance, a court heard evidence on a father’s Facebook posts where he had posted violent and threatening messages about the mother while the action was pending. Of course, it did not help the father’s cause that he had a prior history of violence towards the mother. Also, the court also considered the fact that the father’s girlfriend “liked” a number of his violent Facebook posts.
Similarly, in reaching a finding of alienation and awarding sole custody to a father in a contested custody dispute, a court cited an email from a mother saying, “You will never feel so much pain when I’m done with you…I’m going to embarrass [sic] you and make the kids hate you.” This, in conjunction with Facebook posts state that the children “have a really bad father” were key in the court’s findings.
These instances are prime examples of a growing trend: social media has become a treasure trove for family law attorneys and investigators to find incriminating information. Additionally, many would be litigants in family court do not realize that social media posts are discoverable pieces of information because they are likely to be true and accurate statements of a person’s opinions or feelings at a given time. As such, they are viewed as being particularly reliable.
With that said, people involved in divorces and contested child custody matters should be careful about what they express online. The general rule should be that if you don’t want something to be read in family court, do not post it online.