Social Media Pitfalls in Family Law By:  Sabrina M. Dolson


By now, most people are aware of the far reaching effects social media posts can have. Videos intended for family and friends can go viral, receiving millions of views. Teachers demonstrate to their students just how many people can end up seeing a post by requesting viewers to share or like their post.  And those looking for employment are warned to either use their discretion before making posts or to keep their social media accounts private.

Social media posts have now found their way into the judicial system, and in particular, the family law arena.  Disputes between parties engaged in family law litigation are highly personal, causing many parties to use social media to air their grievances.  However, complaining about the other party on social media may have an adverse effect on the outcome of the case, particularly when child custody is at issue.  In determining the best interests of a minor child in a custody dispute, Nevada Revised Statute § 125.480(4) requires courts to consider which parent would be more likely to allow the child to have frequent associations and a continuing relationship with the other parent, the level of conflict between the parents, and the ability of the parents to cooperate to meet the minor child’s needs.  Parties wishing to share joint physical custody or requesting primary physical custody may encounter problems demonstrating that they are willing and able to cooperate with the other party when their social media accounts tell another story.  Taking a screen shot of a person’s rant is not only easy but becoming increasingly more common.

When alimony or child support is at issue, a party may be able to demonstrate that the opposing party is misrepresenting their income or spending that income on expenses and luxuries other than alimony or child support.  People tend to use social media to post pictures of vacations or new purchases, both of which may have an effect on the determination of alimony or child support.

Some users might believe they are being prudent by keeping their social media accounts “private.”  However, a party may have access to those “private” posts if the parties share mutual friends who could pass along that information.  Courts may also order the parties to turn over their passwords, usernames and logins for social networking sites to the opposing attorney.  This would allow the opposing party to view posts and comments intended only for friends, along with private messages and conversations.

Family law practitioners should advise their clients to be aware of their own social media presence, as well as the opposing party’s.  Parties should monitor their posts, photos, check-ins and comments, all of which can be used to show how that person spends their time, where that person was at a specific time, what that person spends their money on, and whether that person will likely cooperate with the other parent if child custody is at issue.  The most prudent advice would be to not make any posts or comments regarding the family law issues at all.  In addition, clients should be warned not to hack into the other party’s account or create a fake account to “friend” the other party.  These actions may lead to court-issued sanctions or other adverse rulings that would be detrimental to the case.

The presence of social media in family law cases is only likely to increase, especially as the courts continue to rule on social media issues.  As such, family law practitioners and their clients must be aware of the consequences of social media on each case and be able to plan accordingly.

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