Social Media and Communication DOs & DON'Ts in Custody Cases

Your ex is a real [insert expletive here] and knows exactly how to get under your skin.  After pushing all the right buttons or making yet another terrible parenting decision without your input, you take to the keyboard or your smart phone to vent.  Your blood pressure is rising by the second, and you hit "post" before thinking about how your personal rant could affect your legal case.  I mean, how could it?  Your reaction is totally justified!  Or is it?

All too often, clients get themselves in sticky legal situations as a result of something they posted on Facebook or sent to the other parent during a heated text messaging argument.  Parents in ongoing divorce and custody cases (and even after cases are closed while the children are still minors) need to be especially careful about what they put into writing.  Not unlike the criminal Miranda warning, parents should be aware that anything you post can and will be used against you in a (domestic) court of law.  When posting to social media sites, sending Facebook messages, and even when sending text messages and emails generally to your ex, I recommend adhering to these dos and don'ts:

1.  DON'T delete things you previously posted out of fear that they may be used against you.

Before addressing what not to post with more specificity, first and foremost, I advise you do not delete!  This may seem counter-intuitive as damage control sounds like a good option after that questionable Facebook status you posted about your ex from the bar at 2:00 a.m., but you may be hurting yourself more in the long run.  Your ex will likely argue in court that you have committed spoliation.  What's that?  Spoliation (spoh-lee-ay-shun) is defined by the Black's Law Dictionary as "the intentional destruction, mutilation, alteration, or concealment of evidence."  Essentially what it means is that you have deleted evidence that you should not have deleted.  Even if that evidence may or may not have been all that harmful to you, if your ex can prove that spoliation has occurred, there is a good chance that the Court will assume that the deleted evidence was unfavorable to you.  Not to mention, the Court may impose sanctions, such as ordering you to pay your ex's attorney fees.

In short, don't delete your posts or deactivate your Facebook profile in attempts to hide something potentially damaging.  It is better to let your lawyer argue against the admissibility of the evidence or lessen the blow with logical explanations than it is to have the Court assume the worst.  (Note: if you already deleted something you should not have, tell your lawyer!  It is better for your lawyer to hear it from you and plan accordingly than it is to have your lawyer get blindsided during a court proceeding.)

2.  DO save posts and conversations from your ex if they may help your case.

So your ex sends you a text message or posts something to Facebook that could hurt them in your custody case (e.g., any of the bad examples listed later on in this blog post).  What next?  Instead of seeking revenge by responding in kind, try the smarter option – preserve the evidence.  Take a screen shot of that Facebook post or text message thread on your smart phone.  Print that email or save it as a PDF.  Send this evidence to your lawyer for potential use in your case down the road.  That way, your lawyer can see exactly what is going on and has that evidence ready to use when needed.  Additionally, in case your ex did not heed my advice above and later deletes that evidentiary gem, you already have a copy and may avoid the need to prove something you cannot access later.

Should you still save your ex's text messages and social media posts if they aren't very damaging?  Potentially, yes.  For instance, your ex my not be going so far as calling you expletives or attempting to bribe you to gain an advantage in your case, but that evidence may still carry more weight than you might think.  For instance, if your ex claims that the Court should not order shared parenting because you just don't get along and therefore are incapable of communicating about important parenting matters, save those seemingly ordinary texts and emails that show you have a history of cooperating when it comes to making decisions about the children.  If your ex claims that you harass them online or in text messages, save those conversations that disprove any alleged foul play.  When in doubt, more evidence is better than not enough evidence.  It never hurts to save this evidence away in a computer folder in case you end up needing it down the road.

3.  DON'T offer parenting concessions as leverage for property or financial gains.

"I will agree to shared parenting and more parenting time if you agree to move out of the house any pay me $_____ per month for spousal support."   No, no, no!  I cannot stress this point enough.  Parenting matters are decided by the Court based upon the best interest of the children.  Financial and property matters are decided based upon an analysis of entirely separate legal factors.  As a practical matter, you may be more willing to make parental concessions if you feel you are getting a better deal on the financial side of the case, but do not communicate this in writing to your ex.  This may come across to the Court as a bribe.  Essentially, it could look like you are not basing your parenting decisions on your children's best interest, but rather that you are unfairly withholding your children from your ex until he or she gives in to your financial demands.  Children should never be used as a pawn in legal negotiations.  Talk with your lawyer to develop fair and reasonable settlement offers.

4.  DO keep it short and sweet.

If you and your ex aren't on the best of terms and communications tend to turn hostile, limit your communication.  Ask your ex to have all communications in writing (when practical – sometimes a phone call is more appropriate), and ask to keep your correspondence limited to discussions about the children.  Talk about what's going on with your children, when and where your next parenting exchange will be, and what upcoming medical appointments and extracurricular events they have scheduled.  Keep it to the point and keep it polite.  As discussed above, it's better to demonstrate a track record of friendly and effective communication from you than it is to further engage in downward spiraling arguments.

Social media, emails, and text messages in the context of a custody case are meant to assist you with effective communication.  This is not a good platform to tell your ex to "go to hell," "I'll see your *** in court," or "I'm going to clean you dry in attorney costs."  Sharing pictures with your ex should include happy, smiling pictures of your children – not pictures of you making out with your new boyfriend or girlfriend to make your ex jealous.  If you want to get back at your ex, do so in a proper fashion through legal procedure and finesse, or else your words and actions may only come back to haunt you, not your ex.  Remember that being the bigger person and biting your tongue in the short-term may help you substantially in the long-term.

5.  DON'T rant.

Facebook has become a place to vent online about your problems.  We all see it from friends (some more than others), and we all do it on occasion.  Just don't air your dirty laundry for all the world to see if it can hurt your case.  If you want to tell someone about how much of a deadbeat ******* you think your ex is, save it for your next happy hour with your best buds or let it all out in an email to your lawyer.

6.  DO wait and think things through.

So your ex just sent you a novel-length email blaming you for anything and everything that's gone wrong in life, with a few choice words thrown in to get you riled up.  Allow your blood pressure to settle back down.  Stop and think.  Does this email actually require any response?  If so, limit your response to answering questions that relate to very specific legal issues (e.g., parenting decisions, property division) in a polite and concise matter.  Kill your ex with kindness.  More often than not, though, those emails serve no purpose other than to piss you off.  If your ex is that angry, what makes you think that your rational response about why you believe your children should attend school in your district will actually be rationally received by your ex?  Perhaps your ex is just complaining about the causes of your failed relationship and has no real point that requires attention.  Do not engage in these types of communications.  Allow your lawyer to handle those types of conversations to diminish the element of emotional drama in the conversation.  Heated emotional responses are rarely productive.  If you are so enraged that you just have to get it out of your system, as described above, talk it out with friends or put your thoughts in an email to your lawyer.

7.  DON'T post illegal or questionable things.

"Hey Joe, I had so much fun at the Memorial Tournament with you last weekend.  Lol I can't believe we didn't get pulled over when I drove us home!"  Seriously??  This may seem like a no-brainer, but you would be surprised at how often this is an issue in custody cases.  Definitely do not post pictures of your drug paraphernalia or talk about your latest and greatest high experience.  (Better yet, don't use illegal substances at all.)  Do you believe that marijuana should be legalized and that it is your First Amendment right to promote your political position to the world on Facebook?  Perhaps it is your legal right.  But is it a good idea?  Probably not.  These posts may result in a court-ordered drug test and may be used by your ex to demonstrate your questionable decision-making as a parent.  After all, if you are getting high, then you are probably not fit to care for your children (or at least that's the argument your ex will make).  If you want to maintain custody and extended parenting time with your children, it may be best to tone down that particular type of political activism for now.

In ongoing divorce cases with unresolved property and financial issues, don't post pictures of you wining and dining your new boyfriend or girlfriend.  (Better yet, don't spend any marital money on a marital affair.)  Although the fact that you committed adultery itself may not have a dramatic effect on your divorce case in a no-fault divorce state, the spending of marital money on an extramarital relationship will likely hurt your case financially.  (Read my previous post about adultery here.)  "But I only spent my income for that jewelry I bought my girlfriend."  Think again!  Income earned during the marriage is generally considered marital property.  When in doubt, contact your attorney to ask how you can and cannot spend your money before you actually spend it.

"But my Facebook profile is set to private!"  Assume that nothing is private on the internet.  While your privacy settings may be designed to keep out the general public, there are still ways around that.  As it may turn out, that acquaintance you "friended" on Facebook a few years back when you and your ex were still together may still be a friend of your ex.  There is nothing stopping him or her from saving this evidence and giving it to your ex.  Your social media posts and messages may also be lawfully requested in the discovery process.  It's best to operate under the assumption that anything negative you post will show up in your legal case.

When all is said and done, your best bet is to limit your social media involvement altogether, particularly during an ongoing case.  Even the seemingly harmless posts may be brought up as potential evidence against you.  A simple post like, "Long day, empty refrigerator, and no time to go grocery shopping... Guess we're eating fast food tonight," may be used to argue neglect of your children.  Your Instagram picture of your #vacation to the Bahamas may be used to argue that you have the ability to pay more for child or spousal support.  Your Tweet about your long-awaited Ladies' Night may blow your cover when you claimed you were sick and couldn't watch the kids.  A picture of you smoking cigarette or drinking a beer at a neighborhood barbecue with your kids may be used to demonstrate that you expose the children to secondhand smoke and care for your children while under the influence of alcohol.  If you just can't separate yourself from your social media account, only post things that you would be okay with showing to your conservative grandmother and your employer.  If your post passes that test, then consider all of the possible ways that your post could be manipulated against you by your ex in court before actually submitting it online.