Social Media and Text Messaging: How technology impacts the evidence in a family law case
Originally published by The Law Office of Bryan Fagan, PLLC Blog.
Towards the end of yesterday’s blog post from the Law Office of Bryan Fagan, we began talking about two of our favorite things as a society: text messaging and social media. I don’t say that sarcastically, either. Human beings love to communicate with one another. It’s just that in our day and age the way that we communicate with each other has changed. Change in the means of communication between people has something that has always occurred, but now that we are doing so via a third party (our computers/phones) how the communication occurs has changed in a significant fashion.
That brings us to today’s blog post. What has the impact been on family law cases from the changes in communication that we have seen occur over the past decade? Whereas even ten years ago text messaging was not nearly as common as it is today, in 2020 we text our friends and families more than we talk to them on the phone. If I were to take a guess, I would go out on a limb and say that you and I send ten times as many text messages as we do phone calls.
Since text messaging and social media posting are so prevalent there is likely to be a connection between these things and your family law case. With the assistance of an experienced family law practitioner, you can leverage your social media presence against that of your opposing party to accomplish goals within your case. However, if you are not working with an attorney who possesses knowledge of these issues and how to use them to help your case you are at a significant disadvantage.
Keep your personal information personal- don’t overshare online
You may be surprised to learn (or may not surprised, after all) that most people overshare information online when using social media. Something is comforting about these social media websites that allow us to let our guard down and share information that we may ordinarily keep closer to the vest. Being online is funny because we can connect to the entire world all from the safety of our homes. We feel so comfortable in our surroundings that the internet takes on a comforting feel to it.
The trouble begins when we start to cozy up to the internet and its social media websites. These are public forums, after all. Would you want to post about your latest night out in the Houston Chronicle? I don’t think so. So why would you want to post something potentially embarrassing on the internet? Anyone with a computer and a little bit of know-how can tap into your online profile and get a pretty good idea regarding what you are all about.
One of the first things that any family law attorney worth their salt will do once a new case is signed up is looking at your and your opposing party’s social media profiles. This is a great way to see if there is any evidence that can be used for or against either of you. Sometimes there are things that we can learn about a person that may have slipped your mind or that you felt to be irrelevant when speaking to your lawyer for the first time. If we see something that could be problematic to your case, we can talk about it early on and then do something about the problem before it hurts your case.
Be aware that who you network with online matters
Whether you use social media to post photos of your kids or to post photos of your nightly escapades around town, you need to be aware of the people that you connect with on the internet. While it seems like nothing important to ask someone to be an online friend, that decision can have serious impacts on your life later on. By friending someone, you are building a bridge that allows that person to put information up about you and include your identity within that post. When that post is a compromising photo or less than the flattering description that involves you, that is when seemingly little decisions can have big impacts on your case as a whole.
The big thing to keep in mind is that you could have blocked your opposing party from viewing social media profiles that you have, but that doesn’t mean that he or she cannot obtain worthwhile information about you anyways. For instance, go through your social media profiles and look through all of the people that you are connected to. Now, think about how many of those people that you are connected to are also connected to your opposing party. Probably more than you are comfortable with.
What you can do about this is take some time and protect yourself by blocking people that have relationships to your opposing party. That doesn’t mean that you have to block the person forever, it’s just that this is a good defensive measure for you to take in conjunction with your family law case. The reason why I advise folks to do this is that it doesn’t matter how your opposing party gets information about you online unless he or she has hacked into your social media profiles. If your ex-spouse gets his sister to look up compromising photos of you to use in your child custody modification case, then there is nothing wrong with that from a legal perspective.
What methods do people employ to get social media evidence for a family law case?
Here is where you can play detective regarding digging up dirt on your opposing party and their family. Usually, an attorney does not have to prompt a client to do so, but it would be a good idea for you to go online and start to look for information that may relevant to your family law case. For instance, if your spouse is attempting to win primary custody of your kids, a photo from a random weekday night showing that he’s out on the town engaging in bad behavior may seriously help your case. A series of photos from consecutive weeks or even months would be even better.
Some people, for whatever reason, will post online every single photo that they have ever taken of their children. This is all good and well if the photos are of your child walking or crawling for the first time, but I can tell you that most people do not limit their postings to just these kind of photos. Rather, many people will post photos of their child with alcohol in the background or from times where your child has been exposed to things or people that are probably not appropriate given the age of your child.
If all it takes is your spouse’s attorney asking him to go online and look for compromising photos of you on social media, what’s to stop him from doing just that? You need to think about anything that you have done online that you may now regret. The good thing about social media is that you can control what goes up and what goes down. If you have a friend who you know always posts every photo from nights out socializing, you may want to contact that person to ask them to not “tag” your name in any photos or status updates that may put you in an awkward position.
Here is what your attorney will be doing (and what your spouse’s attorney will be doing to you): logging onto their own social media profiles and conducting simple searches of your spouse’s name. Whatever comes up will be a part of the research that is being conducted. If nothing can be found on social media websites, Google is the next logical place to go. You may as well as Google your name and see what pops up. Odds are it will be pretty benign but if you find something that puts you in an unfavorable light. Report back to your attorney about what you have found.
Text messages as evidence in Texas family law cases
Let’s jump subjects and talk about how text messages are often used in family law cases in Texas. If you have text messages on your phone that put your spouse in a negative light you should do your best to not delete them. Judging from working with past clients, most of you going through a divorce have photos or text messages of your spouse on your phone that at least make him or she appear to be a really bad person.
Some of the things that these folks have said via text messages are enough to make your toes curl. I think it has to do with the ease by which you can communicate something. There is no friction between your brain, your fingers and the keyboard for your phone. In a matter of seconds, you could write and send a text message that paints you in a terrible light. At least in the old days, it took a little more thought and effort to communicate with one another. Those added seconds likely did a great deal to prevent not well thought out messages from being sent to other people.
From a technology standpoint, all you would have to do is figure out how to take a “screenshot” of your phone when a specific text message or string of text messages are up on the screen. You can take a screenshot of the text message, save it to your phone and then send it to your attorney. Let your attorney take a look and decide as to whether or not it is something that can be used in your case.
Why are text messages important to your family law case?
Text messages are evidence just as much as paper documents can be evidence. You can use text messages to catch your spouse in a lie during a trial or temporary orders hearing. For example, if your attorney asks your spouse if she has ever threatened you and she says no, your attorney can catch her in a lie by introducing a string of text messages that show her making threats towards your safety and well-being. Since text messages are sent so easily I think they are more reliable and trustworthy a source of information. The reason being that we don’t have an opportunity to think about a text message before sending. We’re more likely to be honest, in other words.
Another way that you can use text messages or social media posts as evidence is to prove that your spouse was at a particular place when he is denying being there. A party where people were doing drugs and engaging in other bad behavior should not be a place for someone with kids. However, if your spouse is shown to be at a party like this on a weekend when he had your child it can be especially damaging to his case. Keep this in mind as you engage socially after your family law case has already begun. It may be wise just to keep to yourself and to stay at home during your case.
How do social media posts and text messages become usable evidence? Find out tomorrow
In today’s blog post we talked about text messages and social media posts and how they can impact your family law case. All of this discussion is theoretical unless you can obtain evidence and have it admitted into the record of your case. That is what we will talk about tomorrow when we pick up where we left off today.
In the meantime, if you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to ask questions and receive direct feedback about your case. We pride ourselves on representing clients to the best of our ability and believe that the successes we achieve across the family courts of southeast Texas are unmatched elsewhere.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.