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Social Media Evidence in Divorce & Custody Cases

Social Media has quickly become one of the most popular methods to express feelings and share information.  Social media is an important part of modern life for many people. Pew Research reports that that 65% of adults use social media, nearly a ten-fold increase over the past decade.  The increased use of social media has effected all facets of modern lide including legal cases. Social media is now often used as evidence or for cross exam in divorce and custody cases in Missouri.

Social Media can range from sites like Facebook, LinkedIn, and Twitter to phone apps like Instagram and Snapchat. Similarly, many conversations occur through logged text messages on a smart phone.

In a Missouri divorce and custody cases each side is entitled to conduct discovery. Discovery is the legal process in which each party is entitled to request information from the opposing party and third-parties. Under Missouri law, the scope of the information that can be requested is very broad.

The parties may obtain discovery regrading any matters, not privileged, that is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim of any other party.” Missouri Rule Civil Procedure 56.01

The purpose of discovery in dicorce and custody cases is to investigate the facts, prepare for trial and to avoid surprise. Discovery can be done formally or informally through investigation. It is common in both divorce and custody cases to do informal discovery. When done informally a party may obtain your social media profiles or information that is publicly available. It is common in divorce cases for informal discovery to include capturing and saving publicly available information on Facebook, Twitter, Instagram, and other online social media.  If you maintain public profiles they will also likley me monitored by your opponent.

If the other party does not have access to your profile they may use the formal discovery process to request information including posts, pictures, and videos related to your social media or online accounts. This can be done under Rule 58.01 of the Missouri Rules of Civil Procedure which requires the production of documents and things, or by subpoena.

Social Media as Evidence

Social media is being used in Missouri courts as evidence. For example, in a parental termination proceeding a mother appealed the court’s finding terminating her parental rights.  The appellate court upheld the order specifically noting that the mother’s testimony was impeached on cross exam by statements made in her own social media posts.

It was revealed on cross-examination that Mother was not at the hospital the entire day but was at her cousin’s house at least part of that day. Mother had posted on a social media site that morning, “feeling a lil hungover.” We find that the evidence was such that the court was justified in inferring that Mother avoided submitting to drug testing prior to the termination of parental rights hearing and that such avoidance was suggestive of a continued lack of sobriety. J.T.S. v. L.K.T. (In the Interest of S.D.), 472 S.W. 3d 572 , (Mo. App. W.D. 2015).

Social Media may be used in many ways in a family law case. In general, social media could be used as:

  • Evidence of statements
  • Evidence of actions
  • Evidence of time and location
  • Evidence of relationships
  • Evidence of income, possessions or spending
  • Evidence of state of mind

Social media posts can be used to show what you were doing and who you were with. In a dicorce case or a custody case this could be crucial evidence.  This can be from the text of the post, a picture, video or geo location data. Check-ins on popular social media apps let everyone know where you were at a particular time. This information may be relevant to several issues in a divorce or in a custody case.

Posts about purchases, restaurants, vacations and other leisure activities may be used in a case where there is a dispute of money. Examples include alimony, and child support. Social media may also be used to show violations of custody arrangements or restraining orders.

Social media is very central to some people’s lives. If you spend a significant amount of time on social media even if it is unrelated to your legal case it may be relevant. The time you spend on social media, if excessive, may be used as evidence in custody or modification case.

Social Media Can Ruin Your Case

Be cautious of social media use during your legal proceedings. Using social media to discuss your case, or the opposing party is not a good practice. Your messages may not be visible to the public in general but may be reached by the opposing attorney through the legal process. Social media and other datat captured by apps and devices are evidence and you must act accordingly to protect your interests.

Our experienced family law attorneys Sonya Faiella and Cassie Carpenter are available to speak to you regrading your specific legal matter. If you have a family law matter in Moberly, Macon, Keytesville or Salisbury, Missouri and wish to discuss your options contact Gump & Faiella to schedule a consultation.

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