Can posting about my children on social media impact my custody arrangement?

You may think posting a picture of a day out with your kids is harmless, but it could have consequences for your custody arrangement. Tindall Gask Bentley associate Melanie Tilmouth looks at a big issue affecting parenting in the digital age.

Can something as seemingly innocent as a Facebook post or a quick Tweet really impact your custody arrangement? The lines are blurring between the real world and social media and how we communicate has changed. This means parents who share information or images of their children online or on social media, known as “sharenting”, may be at greater risk following separation.

The Family Law Act makes it an offence to publish any information or images which may identify a child or party to family law proceedings, but parents are often unaware of the way online publications, while not in breach of the Act, can  still impact the outcome of their matter. This includes anything posted on platforms such as Facebook, Snapchat, Instagram, Twitter, Skype and YouTube.

In the 2013 case of Lackey & Mae the Judge referred to social media as being used “as a weapon” and that “… parties (and lawyers) readily and regularly explore for (invariably incriminating) ‘evidence’ to be used in litigation”. There are now many cases in the Family Courts where social media posts are used as evidence.

It’s not a wise move to post thinly-veiled criticisms of the other party or show your frustrations with “memes” or seemingly-generalised quotes. In the case of George & Nichols the father posted a cartoon with the phrase “I Type ‘Bitch’ into my GPS and guess what? I’m in your driveway…”. The Court, in this case, ordered the mother have sole parental responsibility for the child as it was concerned the father “…could not contain his poor opinion of the mother… in particular based on his Facebook comments… and that the child would likely suffer psychological harm if required to spend time with the father”.

Once such information is online, even if you delete a post or image, it can prove almost impossible to permanently remove it from the internet. You can also be criticised for deleting a post that has effectively become evidence. It is now accepted by the Court that a party’s social media publications form part of the documents they have an obligation to disclose to the other party.

As children grow older there is a chance their own social media posts will be used as evidence. In the case of Eddy & Berry the mother asked the Court to prevent the children from changing schools, as had previously been ordered by the Court, as it would be disruptive to them. However, copies of the daughter’s Instagram posts were provided to the Court showing her excitement and pleasure at the new school.

If during the relationship you were accepting of the other parent’s level of social media use involving the children it will be difficult to take a different view once the relationship ends unless there has been a significant change in circumstances.

There is also a risk that one party could unwittingly sharing private information about themselves or their child, such as where they live – identified by the park in the background or local shops – the children’s school or sports club. This could cause unwanted consequences such as identifying to the non-resident parent information they did not otherwise know, or cause a third party to know your family’s movements. It could also leave you open to criticism from the other parent. For example, pictures showing your children eating ice-cream could lead to accusations of giving them a poor diet, or a day at the beach could quickly become an argument over adequate sun protection.

“Sharenting” can also extend beyond matters relating to the children and into property settlement matters. In the case of Saleeby & Moon the husband alleged he was worth only $300,000, but he had earlier posted pictures on his Instagram account holidaying with the children, showing assets and a high standard of living he had not disclosed to the Court.

In some instances you can get injunctions restraining your former partner from particular types of social media posts. After a relationship breaks down early legal advice about social media use is important as it can have a significant impact on the outcome of your matter.

Family law can be complex, especially when social media, children and property are involved. Tindall Gask Bentley Lawyers’ expert family law team is ready to guide you through the process. Book an appointment today at your nearest TGB office.