In a world full of Twitter, Snapchat, Facebook, Instagram and Periscope, pictures, posts and relationship statuses are posted for all of your friends and followers to see. In the midst of the “OMG” and “LOL” comments, these social media accounts are a goldmine for gathering evidence against you in your custody and/or divorce case(s). Sure, blocking or unfriending the opposing party (and their family members or close friends) will help, but that won’t prevent an opposing attorney from screenshotting all of your #mcm, #tbt and #sundayfunday posts.
When you are facing a child custody case or a divorce from your spouse, you don’t want the whole world seeing your dirty laundry. You also do not want the opposing party or opposing attorney airing that dirty laundry for the Court to see. So how do you protect yourself from unknowingly providing the opposing party with ammunition for court? The most foolproof way is by not posting anything or allowing yourself to be tagged in anything that you would not feel comfortable having a judge read out loud in a courtroom.
The Rules of Evidence prevent you from removing past posts from your social media sites once a lawsuit has been filed. Prior to a lawsuit, you are permitted to remove any posts, pictures, or comments from the internet at any time. If you receive a letter from an opposing attorney directing you not to remove these social media posts, you have a legal duty not to remove them.
Even after a lawsuit has been filed, you can increase your privacy settings on all of these sites. Make sure to “block” or “remove” individuals who may be looking for evidence against you and make sure to apply the following privacy settings to your accounts:
- iPhone – In settings, go to “Privacy” à “Location Services” à “Facebook/Snapchat/Instagram”à “NEVER”
- Instagram- In settings, make sure “Private Account” is selected
- Facebook- In settings, go to “Privacy”à”Who can see my stuff” and change your settings from “Public” to “Friends” or even “Close Friends”
- Snapchat- Block any individual that may be looking for evidence against you. Additionally, refrain from posting any “Stories” or “Snaps” that someone could screenshot and use against you.
The use of smartphone and social media evidence in custody and divorce proceedings is ever growing. The American Academy of Matrimonial Lawyers (AAML) has conducted several surveys that illustrate the increasing prevalence of electronic evidence in divorce proceedings. One survey found that the most common types of evidence taken from smartphones included:
- Internet Search Histories – 1%
- Email – 23%
- Text Messages – 62%
- Call Histories – 13%
Be sure to keep a close eye on your accounts during your case. Even with added privacy features, you or your ex/ex-spouses’ account activity is still subject to being revealed through various methods during courtroom proceedings. If friends are posting things on your wall (pictures, comments, posts, etc) that may reflect negatively on you in court, ask them not to post such items. If you and your spouse or ex have mutual friends in common, make sure that your friends refrain from tagging you in posts or pictures or posting “Stories” with you in them that could hurt your case.
Most importantly-think before you post! Don’t leave your attorney #scrambling to defend against your negative posts.