Think Twice Before Posting That Facebook Rant: How Social Media Can Be Used Against You in Family Court

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Partner Gary Fishbein with Brot•Gross•Fishbein•LLP, one of the most soughtafter family law attorneys in Southern California, catering to celebrities and high-net-worth individuals, sat down with Attorney at Law Magazine to discuss the impact of social media on today’s family law cases.

Gary Fishbein
Gary Fishbein

AALM: Is it common practice to review social media accounts in contested divorces or child custody battles?

Fishbein: California is a “no-fault” state when it comes to divorces, which means that in a divorce, each spouse does not have to provide evidence of the other’s wrongdoing in order to obtain a divorce. Because of this, it is more common that reviewing social media accounts occurs in child custody battles than in a divorce. However, if a soon-to-be ex-spouse suspects the other spouse of having an affair and/or spending money on that person, social media activity could be used to prove that money the suspecting spouse is entitled to is being misappropriated.

Couples often make the mistake of assuming their fiduciary duty to their spouse ends once they file for divorce, which is false – your fiduciary duty to your spouse does not end until the divorce is finalized and the property is distributed. If you start seeing someone else before your divorce is finalized, and you and your new love interest posted photos of the vacations you’re taking or the gifts you’re buying, that is money your soon-to-be ex-spouse may be entitled to if you are using community funds, and that might constitute a breach of fiduciary duty.

As mentioned, the review of social media accounts happens more frequently in child custody cases because badmouthing a soon-to-be ex and the mother/father of your child on social media can impact the outcome. With the well-being of the child in mind, judges take into consideration both parents’ ability and willingness to co-parent civilly, and any proof to the contrary can be harmful to the acting parent’s case. I am continuously reminding clients that they must assume that every email, every tweet and every post will be read by a judicial office, so “content neutral” should be the continuous theme.

With the rise of social media and individuals’ prolific use of these platforms to rant and air out their dirty laundry, the assumption can be drawn that if a parent is saying negative things about the other parent on social media, there’s a chance they’re also saying negative things about the other parent in front of, or to their child. If one parent believes the other parent is badmouthing them to their child, a check of the other parent’s social media accounts may confirm whether the activity supports that suspicion.

As stated, this is not limited just to social media – text messages and emails to the other parent, and more often to a third party, can be used to show that the other parent is unable or unwilling to communicate, has animus towards the other parent and ultimately may not be capable of co-parenting.

Additionally, the review of social media accounts in a child custody case is not limited to the parents; the child’s social media accounts could also be reviewed and they may show signs of a hostile co-parenting environment. For example, is a child mimicking a parent?  A child’s posts may show a need for the child to engage in therapy.

AALM: What about individuals who have their accounts set to private? Is there information still accessible for the case?

Fishbein: Usually clients approach me with a stack of emails or printouts of Facebook posts already in-hand because they’re trying to prove something. The question is how the client got those emails; if it involved hacking into the account, none of those emails can be used in court. However, if your soon-to-be ex-spouse gave you the password to their Facebook or email account, or left it open on their computer, that would be admissible in court.

If an account is private, records of their online activity can likely be subpoenaed.

AALM: What social media practices would you recommend for clients entering into a contested divorce or child custody battle?

Fishbein: Your communication with the other parent needs to be completely content neutral, factual, with no opinions and no accusations. You should only be sharing pertinent information. Every single email or text you write should be written under the assumption that a judge will eventually read it in determining what will happen to your children.

AALM: What about after the divorce has been decided? Can social media posts be used against a client after the divorce has been decided?

Fishbein: With regards to child custody, until a child is 18 years old, their custody can be modified, so anything that may be evidence, such as the other parent is not providing a safe environment for the child, attempting to alienate the child from the other parent, etc., can be used to request a judge’s review and modification of your custody arrangement.

With regards to a divorce, as mentioned above, you have a fiduciary duty to your spouse until your divorce is finalized and your assets are divided. However, if you discover that prior to the divorce being finalized, your ex-spouse concealed assets, in California, a judge has jurisdiction to reopen the case.

There was a reported case in which a woman had purchased a winning lottery ticket with community funds and did not tell her soon-to-be ex-husband. The husband received notification of the wife’s win from the lottery authorities and he sought to recoup some of the lottery winnings. The Court ultimately gave the husband 100% of the proceeds due to the soon-to-be ex-wife’s concealment and non-disclosure of assets.

AALM: What about the clients’ children? How can their social media profiles be used in a case?

Fishbein: By looking at a child’s social media posts, you can sometimes see tell-tale signs of whether the divorce is having a negative impact on them, such as the tone of the content they post, whether they seem more removed, alienated, angry, depressed, confused, etc. It can also determine whether a parent is enlisting the aid of the child in a custody fight, such as overly specific or seemingly scripted posts about one parent, or even sharing screenshots of text message conversations with their parents.

In some cases, if a child’s social media activity is concerning to the point where it may be indicative of an unhealthy co-parenting and/or custody environment, the child may be asked to testify in court. If a child is over the age of 14, they have the right to ask to testify in their custody proceedings, unless there is good cause not to allow it. However, I personally feel that a child testifying in their own custody case oftentimes makes things more contentious for everyone involved, and often places the child in a loyalty conflict. One exception is where a child has witnessed domestic violence and in that case the child would be testifying as a percipient witness. Often, judges will examine a child in chambers without the parents present which is typically less intimidating for a child.

AALM: How do you see the relationship between social media and family law evolving in the future?

Fishbein: If we use history as a predictor of the future, we can only see the intrusion of social media increasing in these cases. Unless parents become more restrictive in terms of the age and frequency with which they allow their kids to use social media, and unless soon-to-be exes become more conscious of their activity online, we will continue to see social media being used as a weapon in divorce and custody cases.

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