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Facebook Posts as Evidence in Custody Cases

Dear Carolyn,

My ex is all over Facebook about what she did with the kids during Spring Break. She apparently took some young woman with her to babysit so she could spend more time with her boyfriend on the Florida beach. She posted my little boy “buck naked” on the beach on Facebook. She posted her “babysitter—young woman” drinking beer with at least a dozen empty beer cans in the background. She posted a picture of her boyfriend and her entwined on the beach on a blanket. And to top it all off, she posted a picture of her new engagement ring from him, and we are not even divorced. I have filed for custody of the two children. She wants alimony. Are the pictures I downloaded from Facebook admissible? Can I make her remove the nude picture of my son as I am worried about perverts? Do these Facebook pictures help me in my quest for custody and no spousal support? I am frustrated with the whole process.

 

Dear Frustrated,

I will say, your ex is acting in particularly bad taste.  Facebook obviously has taken the divorce court by storm, but can you use the pictures in court?   I would love to hear from readers with Facebook questions in family law matters.  The answer is that as long as you legally have the Facebook downloads, you certainly can use them, and you will likely be asked how you got the Facebook pictures.  The real “no no” is to pose as an imposter to get them, but so many people have open Facebook accounts that it is usually very easy to get the Facebook posts legally without even asking for them from the account holder.

In the event that you do not have legal access to the Facebook page and you do not have a “friend” of yours who has legal access, then you can seek the Facebook posts through a Request for Production of Documents in the lawsuit you have with your ex.  She may try to erase them, but there is a cache with the prior posts somewhere in cyberspace.

With regard to the nude picture of your son, I would suggest a simple step first.  Either you or your attorney (or both) should demand that the picture be removed from Facebook.  If that doesn’t work, you can ask your attorney to seek an injunction mandating that the picture be removed.   I agree with you that nude pictures of children on open accounts in Facebook invites pedophile stalkers of your children.

Your ex has shown some poor judgment for a mother in a custody trial.  I ask my clients to not post on Facebook during the pendency of a case as these Facebook pictures and posts almost always surface in court.  First, she apparently has introduced the children to a fiancé before she is even divorced, which the psychologists generally tell is confusing and bad for children.  Second, she is on the beach with a babysitter who is intoxicated which shows poor judgment. Finally, the nude picture shows she is not really thinking about the problems of perverts in our current society.  You are on your way to showing she is not placing the best interests of the children first, for whatever reason.   You have some good material for your custody case.

Finally, alimony terminates upon an ex-wife’s remarriage.  Your facts don’t say whether she was with this man before separation, so I will not address that; if she was having the affair before separation, she may not be entitled to alimony at all, unless you were also having an affair.  Remarriage or cohabitation are a termination of support for a dependent ex-spouse.

 

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This blog is an excerpt from Ask Carolyn, available on kindle.  

Send your questions on family law and divorce matters to “Ask Carolyn…” at askcarolyn@rhinotimes.com, or P.O. Box 9023, Greensboro, NC  27427.  Please do not put identifying information in your questions. 

Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation.  The column also uses hypothetical questions.  A subtle fact in your unique case may determine the legal advice you need in your unique case.  Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”