Quite often in custody cases, a client gets nailed to the wall for something they said in a text or social media post. Sometimes they don’t. What makes the difference?
More and more, people are sharing difficulties in their lives on Facebook, Instagram, or another social media forum. They frequently lash out against the other parent in texts and emails. And more often than not, those statements and posts are used against them in their custody case.
It is perfectly natural for people who are frustrated and hurting to want to say something about it. I’m often given reams of screenshots and posts that show the other parent is manipulative or defamatory in what they say about my client. This is particularly bad when children have access to that parent’s social media posts. Unfortunately, it is also fairly common that these texts and posts are unusable at trial because of how my client reacted to them. They often try to defend themselves to the accusing ex or to their friends on social media. But to a judge, who assumes both parents are equally entitled to raise their children, it makes them both look bad.
Custody of children is based upon a number of factors. (For a detailed discussion on custody determinations, see my article “Fathers and Mothers have Equal Custody Rights in Nevada.”) Three of those factors are regularly affected by what people post online or send to the other parent:
· Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the other parent;
· The level of conflict between the parents; and
· The ability of the parents to cooperate to meet the needs of the parent.
In most cases, parents who are able and want to be involved in their children’s lives are going to be given that opportunity. But when a parent seems to be overly controlling, or when they go out of their way to disparage the other parent publicly, the court is going to wonder if they really are capable of fostering the other parent’s relationship with the children. And if they are viewed as the one unnecessarily increasing the conflict, especially when it results in more court actions, that parent can end up paying the other’s attorney’s fees.
Generally speaking, children do best when they have both parents positively engaged in their lives. So, when one parent proves themselves to be untrustworthy, they have a harder time getting joint physical custody. So consider how you use electronic communications.
The general rules regarding texts, emails, and social media posts are these:
1. Assume that whatever you write is going to be seen by the judge. This is true even if today you think you and the other parent are getting along. If something goes sideways a year from now, you can bet they are going to search for everything you posted and introduce it into evidence.
2. Never send a message or a post in anger. It always comes back to bite you since the court (and others) will not understand the context – and they might disagree with you. Your anger makes you seem ignorant of your children’s needs, and it makes you look difficult.
3. Never respond in kind. Often, we see parents receive a nasty message, and they reply in an attempt to settle the score, right the wrong, or justify what they did. In high-conflict cases, one parent might send a four-page email complaining about something, and the other will send four back in rebuttal, and four more to prove the point. These responses always backfire. Arrogance is never rewarded in court.
4. If you must respond (and you usually don’t have to), experts suggest this rule: send a maximum of four sentences, with no more than 20 words per sentence. This will force you to stick to only the important issues and leave the unnecessary sentences out. And don’t send it immediately after writing it. Instead, wait an hour or two, or even overnight if circumstances permit. That delay will give you better perspective as you settle down.
Trust me when I say I love it when the opposing parent loves to post about the other on Facebook. It almost always gives me great evidence to show they are the problem parent. That stands to reason in that if all the posts were positive about my client, my client is less likely to need me in the first place – the parents are getting along. But what grieves me as a trial attorney is when my client responds in kind and ruins the potential exhibit. I can’t just cherry pick the statements in court. I am supposed to show the court the entire exchange. So, if my client responds in just as bad a way as the original post, it’s as if it never happened. I can’t use it.
So, consider carefully what you post if you are prone to post anything about your lives online. Recognize there are no rights to privacy on what you post. Neither are there “first amendment protections” from the consequences of what you write. That you have the right to say it is probably true. But you can’t control the repercussions once it’s out. Instead, if you must write something, be as short and positive as you can. It is bound to make things easier for you moving forward.
If you or the other parent are struggling and prone to use social media, call the attorneys at Nevada Family Law Group at 702-910-4300.We can get the details and give you advice tailored to your needs.