“She/he is purposely withholding the child. She/he constantly says he is unwell and can’t see me but I know that’s not true.”
As a family lawyer, I hear statements like this from clients all the time. While in years gone by we would probably hire a private investigator to try and prove or disprove such concerns, these days we have a much easier way of trying to ascertain the truth in certain claims.
We use social media – and primarily, Facebook.
When you’re going through a separation or divorce, Facebook can work both for and against you, so it’s really important that you are aware of the implications of what you post.
- Don’t use Facebook to post rants
I can’t tell you the number of times a party has charmed the pants off a Family Report Writer, and appeared as Mother or Father of the year, but a quick look at their social media shows abusive rants against the other party, or even worse, threats against them. It’s not uncommon for friends to jump on board and support you making comments of what you should do e.g. “just don’t send the kids anymore”, or making threats of their own. They think they are supporting you and helping you in a difficult time, or it may all be in jest, but such comments can ignite fear in the other party and may lead to unnecessary Court applications being made or may even be presented as evidence to support an issue in their case.
- Don’t incriminate yourself
In the scenario at the start, one party (let’s say the wife) was telling the other party (the husband) that the child was home sick and couldn’t spend time with them. So imagine what happens when the wife posts photos on social media showing her at the beach with the child who is looking perfectly healthy. If you’re going to post photos, make sure you are not incriminating yourself, and posting anything that doesn’t match what you are saying.
- Check your privacy
If you think that putting your profile on private is enough, think again. Sometimes people think they have set their privacy settings up properly, but haven’t actually restricted what their friends can share. It all then takes is for a mutual friend to innocently take a photo and post it on your wall, or simply ‘like’ one of your photos, which then potentially becomes visible to your ex. So make sure you have set up your privacy settings around what your friends can share and add to your page, and who can see who ‘likes’ your posts, too.
- Be careful of who your ‘friends’ are
Sadly, when couples separate some mutual friends you trusted might take sides and turn against you, and feed information to your former spouse. If you don’t want to ‘unfriend’ them, you might want to think about restricting their access to your feed.
- No ‘tit for tat’
If you’re thinking that because ‘they’re doing it so why can’t I?’ then this is, respectfully, the wrong attitude. ‘They’ are not my client, you are. And my job is to protect your case. It’s why you engage a lawyer and pay them so they can help you put your best case forward. A ‘tit for tat’ attitude will never be welcomed by a Judge as a correct solution, so listen to us when we tell you it’s not a good idea.
- Social media posts can be used for more than evidence
Let’s say a client doesn’t know where his former spouse has moved to, and her address is required so that his lawyers can serve her. She knew he would be filing proceedings, and although she has cooperated previously, she has now gone silent, refusing to respond or confirm her new address.
The husband knows the general area of where his lawyers could start looking, but not the exact address. A quick search of her Facebook shows photos of her view from her balcony over a park with a caption of the likes of “It’s great to be out on my own with this amazing view. Here’s to new beginnings!”
The husband’s lawyers now know the wife is living somewhere near a park. They then search for parks in the area their client has mentioned. A review of the wife’s bank records provided by their client show the property agency the wife is paying rent to and the amount. A further Google search shows the properties listed and previously listed by those agents.
The lawyers then narrow down their search to the properties advertised around the time of the expected move, and with prices listed for those they knew the wife was paying. Photos of the properties show one in particular with a view over a park. They then Google Map the address to confirm that property is close to a park. When they zoom in on Google Maps, the view is almost identical to that in the wife’s Facebook photo.
The husband’s lawyers send a process server to that address, and the wife is properly identified and served. If they didn’t have the photo of the wife’s view, they wouldn’t have located her as easily, and their client would have spent needless funds in Court applying for other service options.
In this case, the wife had an objective which was to not cooperate and to make things as difficult as possible for the husband. It was her own recklessness with her Facebook post that let her down by providing the very key that her husband needed to locate her.
While in this instance this benefitted the husband, on the flip side the ease of which people can be tracked down using social media would be particularly frightening in domestic violence cases. So in a worst case scenario, an innocent post you thought to be harmless could put you and your children at significant risk.
- Check the evidence before you jump to conclusions
But before you jump to conclusions about something your ex might have posted, caution should be taken as sometimes this type of evidence is not always what it seems, and it could be damaging rather than helpful to your case. For example, personally I will often post up an old photo from a week ago or years ago just because I had forgotten about it or because I was thinking about that particular occasion and wanted to share it, or for any other multitude of reasons. In those cases, it could be easy for a party to accuse me saying I was at the beach today, when really, it’s an old photo from two weekends ago. It’s therefore always best to investigate further before jumping to a conclusion.
- Always assume that your ex can access your post
A simple Facebook ‘whoopsie’ can be detrimental to your case for a number of reasons. This is why I tell all my clients to always be cautious of what they post if they do not want it falling into the wrong hands. Essentially, what you are doing when you post on Facebook is creating evidence for the other party to potentially use against you. So, before you post anything, think twice, and always assume that the other party will be able to access it. Ask yourself whether you would want your former spouse to have that information or to have it read out in court, and, if in doubt, don’t post it, don’t share it, don’t like it, and don’t comment on it.