Social Media and Family Law: How Facebook Can Affect Your Child Custody Case
Custody cases have always been a complicated part of family law.
Evidence of many types are presented, and recently courts have started accepting social media posts and activity to support parents’ family law cases.
Family law cases are often a matter of ‘he said, she said’, making them particularly challenging to resolve. Digital evidence in the form of social media posts, comments, videos and photos are increasingly relied upon to prove certain facts in the family law courts.
The family courts recently reminded parents involved in custody cases, that once something is posted online, it is there forever.
If you are involved in a child custody case, it is crucial to know how what you post on Facebook, Instagram and even LinkedIn may affect you.
Social Media and family law – Can it be used as evidence?
It is now becoming standard practice for social media posts to be used as evidence in family law cases along, with text messages and emails.
According to a recent study, evidence from social media was accepted in up to 82% of Australian family law cases.
Despite this, many parents seem oblivious to how their Facebook, Instagram and even online dating profiles may be used against them in the family law courts.
One judge recently commented:
‘It never ceases to astound me how many litigants in [the Family Court of Australia] publish material through social media such as Facebook without consideration as to how poorly it might reflect upon them if adduced in evidence ’.
Examples of how social media and family law can intersect with one another, and how online content can be used in family court proceedings include:
- Posts or comments on social media that make derogatory or defamatory mention of the person’s ex
- Posts on social media referring to the court proceedings, the judicial officer, the court, the children’s lawyer, the DHS or the police
- Screenshots of private messages sent through social media apps
- Photos on Facebook or Instagram of a parent partying, drinking to excess or using drugs
- Screenshots of online dating profiles or sexually suggestive photographs
- Video blogs on Youtube referencing the party’s children, ex or the family law case
These types of social media content have been used in the family law courts as evidence to show:
- A party’s capability to care for their children
- A party’s use of illicit drugs
- A party’s excessive alcohol use
- A party’s character and credibility
- A party’s relationship status
- A party discussing details of the family law case with the children involved
Social media as evidence may affect a variety of family law cases, such as child support payments and parenting arrangements, including who has custody.
It is also crucial for parents to be aware that section 121 of the Family Law Act makes it an offence to publish any information or images related to any party or child involved in family law proceedings.
Social Media and Parenting Orders in Family Law
Many parents don’t realise the impact social media use can have on parenting orders.
A parenting order is a set of orders made by the family law court that set out the arrangements for co-parenting a child.
Parenting orders can be made one of two ways. Firstly, a court can make a consent order, based on an agreement between the involved parties. Secondly, a court can make a parenting order after a court hearing or trial. Either way, once a parenting order is established in court, both parties must follow it.
Parenting orders generally deal with the following matters:
- Who the child/ren will live with
- How much time the child/ren will spend with each parent and in some cases other involved parties such as grandparents
- How the child/ren will communicate with the parent they don’t live with
- Any other aspect of the child’s care or development such as schooling and medical care
When a court makes a parenting order, it does so with the child’s best interests in mind.
Social media and family law have intersected when a post shows a parent acting irresponsibly or violently will undoubtedly be taken into account when looking at parenting arrangements. Any threatening or disparaging comments made on social media may also be used in evidence.
While using social media to publish responsible, appropriate, and friendly posts is always advisable, if you are involved in a current or upcoming family law case, it is more important than ever.
Social Media and Child Support Payments
There have been several recent cases in the Australian courts where social media and family law have intersected, and have affected the outcome of cases involving child support payments.
Following separation or divorce, one of the party’s involved may be ordered to pay spousal maintenance. It is also both parent’s responsibility to provide financially for their child’s upbringing, and orders may be made to ensure child maintenance is paid in line with the parent’s income and financial status.
Sometimes, a parent may fall behind in their spousal or child maintenance or claim financial hardship.
If the party is posting photos of themselves on expensive holidays or with new cars and other costly possessions, the posts may be used to prove otherwise.
LinkedIn profiles may indicate sources of undeclared income which may change the amount of maintenance the party is required to pay.
The Case of Lackey & Mae and Social Media
The case Lackey & Mae  is a prime example of how social media and family law have intersected.
In Lackey and Mae, the father involved in the case, along with his family, posted on Facebook, characterising the mother of his children as a ‘liar, manipulator, dad hater, child neglecter, child abuser and stalker’ on Facebook. He also published her personal details and photograph and further referred to her as a ‘cheating, lying whorebag’.
The judge overseeing the case referred to the father using social media ‘as a weapon’, and Marman FM noted that this use of social media is ‘a regrettable common practice now’.
The father in question was found to be in breach of section 121 of the Family Law Act, was ordered to remove all offending posts and was prohibited from posting anything further about the mother or the court case. The Australian Federal Police was also asked to monitor the father’s social media posts for the next two years to ensure he was complying with the court order.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.