When clients ask me whether their social networking activity—Facebook, Instagram, Twitter, Linkedin, etc.— can be used against them in a divorce or custody proceeding, my answer is a resounding “yes.” This evidence is particularly relevant in child custody cases because courts rely on evidence of a parent’s conduct and values to determine the child’s best interest. A Facebook picture depicting a parent enjoying a night out on the town can be used to undermine the parent’s claim that he or she “never drinks” or never goes out when in possession of the children. Imagine your spouse testifying in court that he or she “never drinks” and then, on cross examination, introducing into evidence a blown up picture from Facebook depicting the spouse with blood shot eyes and clasping a shot glass. The effect can be devastating. Social media can also be used to expose a cheating spouse. As we all know, extramarital relationships frequently begin online. A spouse might send a seemingly innocent “friend request” to an old flame or a work colleague that eventually escalates into an illicit romance. In the child support context, social media can be deployed to expose deception concerning a parent’s employment prospects or earning potential. For example, I have used a Linkedin profile to illustrate the existence of a side business—and thus another source of income—that a party did not disclose in discovery.
To minimize the risk of social media being used against my clients, I advise them to cease all social networking activity altogether. This does not mean you should “scrub” or delete your social networking profiles, however. Once litigation has commenced, your social networking site becomes discoverable evidence. Deleting or altering the site constitutes spoliation—destruction—of evidence that can result in you and/or your lawyer being sanctioned by the court. In other words, once litigation has begun, you have a duty to preserve evidence, including your social networking presence.
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