Facebook in Family Court Matters: Steps for Getting Evidence in or Keeping It Out

EvidenceIn my previous blog post titled “Facebook in Family Court Matters: Tips for Posting and Sharing” I discussed six things to consider before posting to Facebook, with tips from the perspective of an experienced Maryland Family Law attorney. Here, I follow-up with strategies on how to get the Facebook evidence into (or kept out of) Family Court proceedings, using general evidence rules.

Step 1: Proving Relevance
The first step to getting any evidence into the courtroom is proving that it is relevant to the matter at hand. The standard the court uses to determine relevance is whether with or without a piece of evidence, the fact to be proven has a higher chance of being true. This burden is easily met in most family law cases where the evidence likely concerns personal conduct or statements about the other party.

The most obvious example of this type of evidence in family court would be a custody case where photos are presented of a parent using illegal drugs, which is visibly relevant to their fitness (or lack thereof) as a parent.

Step 2: Balance of Competing Interests
Even if the evidence is relevant, it must still pass a balancing test of competing interests under the evidence rules. This rule requires the court to balance whether this particular piece of evidence is relevant to the issue at hand, and whether the costs associated with allowing the evidence balances out in the interest of justice. If the cost of allowing the evidence into the courtroom is too high—because it’s too harmful or prejudicial to the other party—the court will not allow it in even if it is relevant.

With our previous example regarding a photo of a parent using illegal drugs, the opposing party would have a valid argument under this step. The opposing party could argue that allowing this evidence in would unfairly prejudice them by portraying them as a criminal or drug addict. As such, in considering photos and their admissibility in family court proceedings, it is important to keep in mind that certain photos, although relevant, may not be admitted if the opponent can successfully argue that the photo will unfairly prejudice them, be a waste of the courts time, or confuse trial issues.

Step 3: Overcoming the Special Issue of Authentication
After proving that evidence is relevant in a family law proceeding, the evidence must be properly authenticated. To properly authenticate evidence, the party who is submitting the evidence must show that the evidence is what they are claiming it to be. This can be proven by a direct print out of a screen shot of the Facebook post, along with testimony of anyone who has knowledge of the profile page or photo once familiarity with and preservation of the information is established.

An example of an authentication process in a custody proceeding would be where an ex-spouse is seeking to admit a Facebook photo of the mother dancing on top of a bar with alcoholic drink in her hand. Ex-spouse wants to introduce the photo as evidence of alcoholism and bad judgment and therefore ill fitness on the part of the mother. Anyone who was at the bar could testify and authenticate the photo as an accurate representation of what took place at the bar on the night in question.

Step 4: Hearsay as a Restriction on What is Allowed in the Courtroom
Think of Hearsay and its use in the courtroom as anything that you have previously heard outside of the courtroom later repeated inside of the courtroom as true. An actual statement (verbal or written) or nonverbal conduct through action will be defined by the court as hearsay. However, there are exceptions that overcome the hearsay rule and allow certain hearsay evidence in. In family law matters, the following exceptions could be used to allow Facebook posts in:

  • Party Admissions: statement made by the person against whom the evidence is presented is allowed as an admission and is therefore not considered hearsay. This is one of the most common hearsay exceptions found in family law cases. .
  • Excited Utterances: statement made in response to a startling event while under the stress or excitement cause by the event. .
  • Present Sense Impression: statement describing or explaining an event that is made while the person is perceiving it or immediately thereafter..
  • Statement of then existing physical or mental conditions: statements relating to past or present mental state of mind or physical state.
  • Business Records: Statements contained in a business record that is made and kept in the
    An example of a Hearsay exception used in a family court proceeding is when a party posts a picture to Facebook of a new luxury car they just purchased after presenting to the court that their child support payments should be decreased. The party requesting the decrease in child support payments would object to the photo coming in as Hearsay; however, the opposing party could successfully argue—in defense of that objection—that the photo is not hearsay but a party admission because it was made by the other party and uploaded to their Facebook account.

This evidence guide with examples for use in Family Court proceedings is just that, a guide. Evidence is difficult and this information is not intended to be sufficient information to proceed without the assistance of a licensed family law attorney. Whether you are going through a divorce, a custody battle, or any other family dispute, you need an attorney who will advocate on your behalf and understand the implications that Facebook evidence can have on your family court matter as well as how it interplays with the applicable evidence rules. Contact Angel Murphy with The Murphy Law Firm, LLC today to schedule your family law matter consultation at (240) 493-9116 or angel@amurphylegal.com.

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