Social media in fam­i­ly law pro­ceed­ings — how is it used?

In brief

Social media goes far beyond cat videos (although it might not always seem like it). We use it to broad­cast our joys, fears, grudges, homes and dai­ly rou­tines. We use it to com­mu­ni­cate with each oth­er, both pub­licly and pri­vate­ly. A recent paper pub­lished in the Fam­i­ly Law Review shows how much of that con­tent is used in fam­i­ly law pro­ceed­ings. In this arti­cle, we have sum­marised some of the main find­ings of this paper, and pro­vid­ed some com­ments about what they mean for litigants.

Method­ol­o­gy

The authors analysed 136 cas­es in first instance fam­i­ly law pro­ceed­ings between mid-2009 and mid-2014. They searched for ref­er­ences to Face­book, Twit­ter, Youtube, Linkedin and Myspace.

Of all the social media evi­dence offered in the cas­es, 97% came from Face­book. Evi­dence of pri­vate Face­book mes­sages were weight­ed above pub­lic sta­tus updates or com­ments, and text was weight­ed above pho­tos. Fur­ther­more, 79% of social media evi­dence was offered in par­ent­ing pro­ceed­ings – leav­ing only 21% in prop­er­ty, inter­locu­to­ry and child abduc­tion proceedings. 

Much of the study relat­ed to the dif­fer­ent pur­pos­es for which social media evi­dence is offered.

1. Suit­abil­i­ty: In most cas­es, social media is offered to pro­vide evi­dence of a par­ty’s suit­abil­i­ty to com­pe­tent­ly par­ent. Usu­al­ly, it is offered for a neg­a­tive pur­pose (i.e. to show that the oth­er par­ty is not com­pe­tent to par­ent). Peo­ple who used social media to make den­i­grat­ing or deroga­to­ry com­ments about the oth­er par­ty’s abil­i­ty to par­ent tend­ed to shoot them­selves in the foot – this evi­dence was fre­quent­ly used to show that the they them­selves were unsuit­able to par­ent. In oth­er cas­es, social media was used to show that a par­ty was engag­ing in drug or alco­hol abuse, or to sup­port an argu­ment that the oth­er par­ty’s home is unsuit­able for children.
2. Intention/​knowledge: Social media was often used to show that a par­ty intend­ed to relo­cate the child/​children, or that the oth­er par­ty had pro­vid­ed con­sent to such relocation.
3. Rela­tion­ship: in In three cas­es, social media evi­dence was offered to show that a par­ent had a good rela­tion­ship with a child. In one case, a father offered evi­dence that he and his son were ​‘Face­book friends’ (the judge com­ment­ed ​‘that struck me as a strange def­i­n­i­tion of a good rela­tion­ship between father and son’.The authors sug­gest that in the future, social media evi­dence might be use­ful in shed­ding light on the strength of a rela­tion­ship by show­ing the fre­quen­cy and nature of con­tact between individuals.
4. Vio­lence: Social media has been adduced to pro­vide evi­dence of fam­i­ly vio­lence or threats by an ex-part­ner (or their family).
5. Chil­dren: In some cas­es social media was adduced in rela­tion to the wel­fare of the child – for instance, where a child’s Face­book post sug­gest­ed that he/​she con­sid­ered self-harm, or that he/​she missed his/​her school friends.
6. Cred­i­bil­i­ty: Social media evi­dence was adduced to cast doubt on the cred­i­bil­i­ty of a wit­ness or par­ty – for instance, by reveal­ing an alias or sup­port­ing an ali­bi. In one case, a father who said he had not gam­bled for some time post­ed a Face­book pic­ture of a pile of casi­no chips with the cap­tion ​‘Rob­bing Star Casi­no 2011’. 

What does this mean for you?

If you are involved in fam­i­ly law pro­ceed­ings, it is impor­tant to know that evi­dence of your social media activ­i­ty can be admis­si­ble, and may be weight­ed high­ly in cer­tain cir­cum­stances. In some cas­es, the oth­er par­ty’s social media may sup­port your appli­ca­tion. For instance, if your ex makes den­i­grat­ing or deroga­to­ry remarks about your abil­i­ty to look after the chil­dren, this might be admis­si­ble as evi­dence of their unsuit­abil­i­ty to par­ent. Con­verse­ly, if you have used social media neg­a­tive­ly – for instance, to den­i­grate your ex (or their new part­ner) — tell your lawyer so that they can pre­pare rebut­tal argu­ments (for instance, chal­leng­ing the rel­e­vance of that evi­dence). Final­ly, stick to shar­ing cat videos – take pre­ven­ta­tive mea­sures to avoid any issues aris­ing in the first place!