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Social Media Evidence Becoming Important in Divorce and Custody Cases


Social media has transformed the way people communicate. People use social media to keep friends and family updated on events in their daily routines, from the mundane to the extraordinary. They use social media to promote their business or profession, or to post photos or videos of themselves or others to share with on-line communities. Indeed, many utilize social media to communicate aspects of their lives that they would never communicate in person. Still others utilize social media without understanding the full scope of its audience or how it really works. As a result, aspects of an individual’s life that one might have assumed would be private may very well be available to the public at large, often made available unwittingly by an unsophisticated user of social media technology.

And, just as social media has transformed the way individuals communicate facts about their professional and private lives, so too has it transformed the way evidence is used in divorce and custody matters. Social media has proven to be, in many cases, an important source of evidence concerning a litigant’s conduct during a marriage or fitness as a parent. Social media communications often include details about an individual that one could never hope to discover years ago. Given the volume of digital information available and the potential relevance of that information to contested divorce, custody and support matters, it is absolutely essential to mindful of the potential impact of this technology in the courtroom.

1. What is Social Media?

Social media takes many forms and the term has been applied to a wide range of digital media. At its core, of course, social media is a form of electronic communication. However, it differs from a traditional email, text or instant messenger communication in that it is not merely a point-to-point transmission or message intended for a specific individual. In essence, social media is an electronic publication of information to an entire group or collection of recipients. The communication may consist of traditional electronic text, as in email, but it also might consist of posting photographs, videos and other electronic files. Moreover, given the sometimes complex way in which many social media websites, such as Facebook, allow users to control privacy, those who have access to the user’s social media posts may or may not be the intended targets of these communications.

2. Where is social media evidence found?

Social media evidence is common and found on sites such as Facebook, LinkedIn, MySpace and many others. Although these are the traditional sources of social media evidence, they are in reality just a segment of a much larger universe. Social media can also be found on other types of websites such as Instagram, pertaining to photo sharing, YouTube, with respect to video sharing, Tumblr with respect to blogs, and other sites such as Twitter, Pinterest and Google, just to name a few. Social media, moreover, is no longer confined to websites. With the advent of smartphones and other devices, dedicated applications now also provide social media content. Thus, a smartphone or tablet user can download apps that provide specialized social media platforms.

Given the range of sources of social media evidence, it is not surprising that important information can be found on a variety of electronic devices. A party’s computer, therefore, may contain images of webpages visited where the user posted or viewed social media information. It might be possible, moreover, to recover such evidence forensically by computer specialists even if it was deleted inadvertently or (perhaps) intentionally by the user. The same content also might be found on the portable electronic devices used by a party.

Finally, of course, third parties may be in possession of social media evidence. These might be individuals who have viewed the social media posts by a party, or they may be the social media host providers themselves, such as Facebook or LinkedIn. Third parties might also include employers of a party who have access to and have used company computers and electronic devices to post or access social media sites. Additionally, one should not overlook that computers and other electronic devices are often backed up by third parties who host data in the “cloud.” Thus services providing automatic online backups of computers might very well be an important source of social media evidence.

3. How can social media evidence be useed in Family Court?

Just as individuals post a variety of material concerning their private lives online, so too are there a variety of issues in divorce or custody matters where this evidence may become relevant. For instance, examples of an individual’s conduct such as excessive partying or drinking can be used in child custody cases where the fitness of a party as a parent may be at issue. Threats against another party in litigation posted on a social media site can be used in a domestic violence case. Evidence of a party’s activities, as posted on a social media site, might also come into play where a party claims disability in alimony or support cases. Impeachment of parties and key witnesses regarding issues such as their whereabouts on a specific occasion, or information posted on a social media website that portrays a witness in an unfavorable light are also common uses for social media evidence. Given the details of daily life that many individuals share with the world through social media, the impact of such evidence in contested divorce or custody cases can be significant.

4. What are the pitfalls of using social media during divorce or custody cases?

Given the host of potential issues that might arise from the use of social media in a divorce or custody matter, it is important for those who use social media to consider whether it makes sense to:

  • refrain from posting information on social media sites while their case is pending;
  • disable social media accounts;
  • review privacy settings so that only specific individuals can view their social media posts;
  • refrain from communicating with the opposing party, potential witnesses, or with common acquaintances, through social media;
  • refrain from discussing or posting information concerning any aspect of their case on social media;
  • refrain from accessing social media, or posting to social media, using an employer’s computers, or any computer or electronic device that does not belong to them.

Moreover, those involved in divorce or custody matters may wish to be cautious about who they "friend" during the pendency of their case, especially with respect to new acquaintances. Finally, it is always a good practice to become familiar with the privacy settings of all social media sites that are being used so that intelligent choices can be made about the use of these services.

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