Who Gets Custody of Social Media?

On behalf of The Marks Law Firm, L.L.C. posted in Child Custody, Divorce and Social Media on Tuesday, February 11, 2014

We have discussed previously the consequences of over-sharing on Facebook or Twitter or other social media platforms, and how these quasi-public or fully public statements can become evidence in a custody dispute or modification proceeding. But can – or should – a court have the ability to control the content of your social media – not just words, but particularly images?

Many people consider social media platforms a way to privately share pictures or thoughts with a closed circle of friends, much as one would at a coffee shop or a private party. However, the analogy breaks down when we realize that much of social media ends up stored in the “cloud” and begins to appear in search engines.

How can this happen you ask? Is not my Facebook circle supposed to be private? It actually can happen very easily and very quickly. Suppose you post a picture of your child on your page, in an unflattering light meant to give your friends a laugh. One of your friends tags the image and makes a comment; unlike you, your friends have different privacy settings and the image begins to circulate into more public waters. Before you know it, a search for the tag will allow the image to appear in a Google search. This is only one of many legal ways images you believe that are private become public.

So, the first rule of social media is to assume that nothing you post ever remains private.
But can the lack of privacy alone justify having a court write into a Parenting Plan how to use images in social media? What about the First Amendment?

When a court has jurisdiction over the custody of children, the court has broad powers to act in ways that impact the best interests of the children, including the exposure of children to social media sites. The court may decide it is in the best interest of the children not to be posted to social media at all, or to require both parents to agree to a particular image posting and the associated text. Or the court may choose to put explicit guidelines into the Parenting Plan regarding social media, including how the children use social media accounts themselves.

We think that having some guidelines and restrictions makes good sense in our electronic age. Sexual predators monitor social media looking for victims; if they see posts that put a child at a particular location on a regular basis as identified by a Facebook or Pinterest post, that predator has the ability to stalk your child. Cyberbullying has become epidemic, and parents have participated with their children. Children appear in posts on Match.com and eHarmony as part of the ad for a date. All of these sharing of images, no matter how innocent the intent, could put children at risk. A general statement warning against certain uses or a prohibition against all uses saves children from potential abuse.

Courts consider custody cases individually, and so some parents may have established habits that require some restraint, whereas others have acted responsibly, and a court can tailor its order accordingly.

Even moving beyond the risk of abuse, how images are shared and what children see of these images can impact effective parenting. For example, one parent who may have more resources to take children on trips or buy different clothes or electronics can create a series of posts that make one parent seem more generous or fun than the other parent. These images leak to other parents of the children’s friends, and the parent who has not posted such pictures may be questioned about his or her lack of similar experiences, which can make the parent and the children uncomfortable.

So, in ways obvious and subtle, social media images can impact and impede child development under custody plans. We have seen improper use of social media lead to a wide variety of custody modification cases, all of which could have been avoided if parties had some form of social media usage policy in the Parenting Plan.

If you have questions about social media and custody, contact our St. Louis child custody attorneys – we can help.