Facing Facebook, Facing Ourselves

Social Networking and Child Custody

The Kentucky case is far from unusual. Indeed, scores of custody cases from across the country involve the admission of Facebook evidence. According to a 2010 survey by the American Academy of Matrimonial Lawyers, more than 80% of its members have used or faced evidence plucked from Facebook, MySpace, Twitter and other social networking sites, including YouTube and LinkedIn, over the past five years. The evidence is used not only to question parental fitness, but to prove marital misconduct. It arises in cases involving the involuntary termination of parental rights, as well as in dependency and juvenile proceedings. It is admitted in domestic violence cases, sometimes to prove whether abuse occurred or to determine whether an order for protection has been violated. Simply put, in the context of domestic relations, Facebook evidence is ubiquitous. It can even be used in support proceedings to determine a party's earning capacity. For instance, do the photographs or posts on Facebook contradict a party's assertion of disability? Do they show a party engaged in conduct that interferes with childrearing, suggesting that employment is feasible? The headlines say it all. One article in The Philadelphia Inquirer is titled, “Divorce, Facebook Style” (July 12, 2010), and another one in the New York Post shouts, “Facebook 'Em! Online Evidence Nailing Straying Spouses” (Feb. 11, 2010).