Family law is an area of law that is not typically mentioned in the same breath as technology. However, as internet use becomes increasingly pervasive, the separation between family law and technology is rapidly shrinking. Internet use, and social media use more specifically, is now frequently being introduced as evidence in family law cases. Unfortunately, judges presiding over family law matters—particularly custody disputes—have been inconsistent in their review of social media evidence.
In cases regarding custody and parental rights, trial courts have broad discretion to determine best interests of the child. In all states, there are various factors to be looked at to determine make a best interest determination. It has become apparent that evidence from social media sites like Facebook can be persuasive in the consideration of many different factors. In Lalonde v. Lalonde, a Kentucky Court of Appealsallowed the admission into evidence of Facebook photos of the mother in a custody dispute consuming alcohol. The judge held that the fact that the photos were uploaded by a friend of the mother’s and then tagged—versus being uploaded by the party herself—did not effect the photos admissibility.
Further complicating matters is the fact that the child’s use of social media in custody cases can have an effect on the judgment. Trial courts have held that both parents must be allowed a weekly review of a teenage child’s Facebook and that simply creating a social media profile for a child is not a reason to modify a custody award.
The growing importance of social media evidence is quickly becoming apparent to family law attorneys. Practitioners are now advising their clients to curtail their use of these sites so as not to provide courtroom fodder. In addition to providing practical advice to clients, attorneys will need to understand how social media evidence is being used in order to provide comprehensive representation.