Modern family court judges, tasked with making various decisions for children through the metric of best interest, are presented with exponentially more evidence than family judges reviewed just a decade ago. The Internet has created an evidentiary explosion in family courts. As access and reliance on the Internet-based services evolve, the quality and quantity of data stored relative to children simply expand. Smart devices allow parents to easily access this vault of information from anywhere. Children’s grades, attendance, and medical records are easily viewed by parents online. Parents can quickly reproduce pictures and information about their child’s daily lives throughout the years, from the archives of various social media platforms. Through text messaging and private messaging on social media, parents can reproduce years of communications regarding their children. Overnight, parents can access a treasure trove of documents, print them out, and present them to the family court.
As new social media platforms emerge and existing social media platforms evolve, trial courts, on the front lines, struggle to keep up with the evidentiary issues created. The majority of social media appellate decisions relate to now-obsolete platforms, such as MySpace, and obsolete expressions, leaving the trial courts to navigate complicated emerging evidentiary issues. The admissibility of online evidence is generally governed by relevance, authenticity, and hearsay rules. The family courts, absent clear appeallate direction, must utilize discretion in evaluating the admissibility of digital evidence.
Ninety-seven percent of children between the ages of 12 and 17 have access to the Internet at home through some electronic device, such as cell phones, laptops, and tablets.1 Twenty-two percent of adolescents sign in to their favorite social media site more than 10 times per day.2 The average child is on the Internet for approximately seven hours per day.3 Seven hours a day? Yep. You read that right. Surfing the Internet is like their full-time job.
With children spending the majority of their waking hours online, parents often resort to spying, snooping, and stalking their children; moms and dads are becoming professional trackers. For better or worse, parents are tracking their child’s locations, steps, and grades in real time, online.
In response to the desire of parents to supervise their children’s online experience, various applications allow parents to restrict Internet access, monitor text messages, and track their child’s location. Parent-controlled applications allow parents to limit their child’s access to the Internet, track their child’s location, and monitor the battery life on their child’s phone. Applications can even report the speed of the vehicle the child is in. These applications create detailed digital records of a child’s day-to-day activities, which are increasingly being used as evidence of a child’s inappropriate behavior and/or a parent’s recklessness in child custody cases.
Hearsay, Present Sense Impression, Say What?
On a practical level, when seeking to admit social media evidence, most litigants will use screenshots or mirror images of websites or applications. These images and screenshots are usually printed and offered as evidence. In 2006, the Federal Rules of Civil Procedure were amended to include regulations for the discovery of electronically stored information. Yet, the standards for social media in state courts vary from jurisdiction to jurisdiciton. Generally, courts that have dealt with this matter have held that the admissibility of social media evidence is to be determined on a case-by-case basis.4
As with any type of evidence, litigants must show that proffered social media evidence is relevant (tending to prove or disprove a disputed fact of consequence), authentic (it is what it purports to be), and not subject to being excluded by the rule against hearsay. Even then, relevant evidence that is otherwise admissible may be excluded if “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”5 Thus, the admissibility of social media posts and other electronic evidence must be determined based on the facts of the case.6
Social media evidence is generally relevant. Social media platforms can provide insight into the day-to-day lives of families. In custody matters involving domestic violence concerns, parties often claim that their proffered social media evidence is relevant to show physical or sexual abuse of the child, sibling of the child, or parent; such evidence also is offerred to prove that a parent or guardian of the child abused illegal substances.7 In a majority of jurisdictions, evidence of such actions is relevant in considering the best interest of a child, namely the fitness of a parent and the history of domestic violence in the home.8 Because social media provide a medium for individuals to share information about their everyday lives, most courts would find such evidence relevant.
Authenticating social media evidence, however, is much more challenging. Social media websites are user-created pages that can easily be used to create false identities. Accordingly, data or printouts from these websites are not self-authenticating and, as a result, courts examine the evidence with a particularly critical eye.9 According to the Federal Rules of Evidence, in order to establish that a proffered piece of evidence is authentic, a party must produce evidence “sufficient to support a finding that the item is what the proponent claims it is.”10 However, courts have held that a heightened standard applies when authenticating social media evidence.11
Many times, an individual can easily create a social media identity in another person’s name. Accordingly, “the fact that an electronic communication on its face purports to originate from a certain person’s social networking account is generally insufficient standing alone to authenticate that person as the author of the communication.”12 Instead, something more is required to autheniticate social media evidence.
Generally, photographs posted on social media platforms are comparatively easy to authenticate, compared to authenticating comments and other text-based postings. Authenticating a photograph, regardless of whether it was posted online, requires only that a witness testify or certify under oath that he or she can recognize and identify what is depicted in the photograph and that the photograph clearly represents what is depicted.13 The testifying witness need not be the photographer of the photo.14 However, courts also have stated that when authenticating a photograph from a network such as Instagram, the party must provide testimony from a witness that the witness downloaded the photo from Instagram and that the exhibit fairly and accurately reflects it may suffice to authenticate it.15 Thus, authenticating photographs posted on social media is no more difficult than authenticating any other photograph.
More difficult authentication issues arise when a litigant seeks to offer evidence contained on an application on his or her phone. For instance, a parent plans to provide the court with evidence that his or her child, while in the other parent’s care, was out past curfew and was in a dangerous part of town. How might the parent authenticate such evidence? The parent may screenshot the GPS tracking application on his or her phone and provide a printout of the screenshot to the court. At this point, the court may authenticate the printout as a photograph. It may not be necessary for the parent to establish that the child was in possession of the phone at the time for evidentiary purposes. Instead, the screenshot could be admitted as a photograph and the trial court might ulitmately find that the child was in possession of the phone based on other testimonial evidence. As a result, trial courts are often left to use discretion in making these evidentiary decisions.
Finally, for statements made on social media offerred in evidence, the party offering it often will face hearsay objections. Social media evidence presents hearsay issues when the statements made by a child or parent on his or her personal social networking account are used to prove the truth of the statement. Any relevant and authenticated information posted by the opposing party on social media is admissible, despite a hearsay objection, when offerred against that party, as a statement by a party opponent.16 But this exception does not apply to a child’s social media posts. Because children are not parties in family court, they are not a party opponent, and their social media posts would not be admissible as a statement by a party opponent. So how can the court properly receive this evidence?
One important way to address the admissibility of a child’s social media page is by determining the purpose for which the evidence is being offerred. If the statement contained on the child’s social media page is not being offered for its truth and, instead, is offerred to prove a child’s conduct or his or her state of mind, then the statement is not hearsay and is admissible, assuming it is relevant, has been authenticated, and is not otherwise excluded.17 Another hearsay exception that is applicable to introducing social media posts is the present-sense-impression exception to the rule against hearsay. Courts have admitted social media posts of neighbors, friends, and children under the present-sense-impression exception, reasoning that social networking websites are media that encourage instant and candid communications.18 For similar reasons, other courts have permitted evidence under the excited utterance exception to hearsay.19
There are several other possibilities where social media hearsay evidence offerred for the truth of the matter asserted may otherwise be admissible over a hearsay objection. One possibility might be the past-recollection-recorded exception to the rule against hearsay. Another is when such messages evidence the “then-existing mental, emotional, or physical condition” of the child, another exception to rule against hearsay, which can allow powerful evidence documenting a child’s feelings of excitement, fear, or depression.20 Likewise, statements made by a child pertaining to the character or personality of his or her parents may be permitted under the statements-of-reputation exception to the rule against hearsay. Examples of such posts include comments or posts that his or her parent is constantly under the influence or absent from the child’s life.21 Such an exception applies where statements of the reputation of that child’s family are made.22 Finally and most powerfully utilized, social media posts and comments may be used for purposes of impeachment, even if they are not admissible under the rule against hearsay.23
This article highlights some of the evidentiary issues caused by the use of social media evidence in cases involving the best interests of children. The growth of Internet-based services and social media, combined with the shear amount of time children spend on the Internet, has resulted in the explosion of the use of such evidence in court. Imagination and creatitivy in offering such evidence are challenges for courts everywhere. The standards for admissibility of social media content vary from jurisdiction to jurisdiction and ultimately rely on the discretion of the trial court. Having the tools to consider how to apply that discretion is essential to a trial court resolving such cases. As new social media platforms emerge and existing social media platforms evolve, trial courts, on the front lines, will continue to struggle to keep up with the evidentiary issues created. Keeping the issues discussed above in mind, however, will aid in that struggle and give the trial court tools to continue to address new and creative types of evidence offered to determine the best interest of the child. n
1. Council on Communications & Media, Media Use in School-Aged Children and Adolescents, 138 Pediatrics 1, 2 (2016).
2. Gwenn S. O’Keefe & Kathleen Clarke-Pearson, The Impact of Social Media on Children, Adolescents, and Families, 127 Pediatrics 800, 800 (2011).
4. Lindsay M Gladysz, Status Update: When Social Media Enters the Courtroom, 7 J.L. & Pol’y for Info. Soc’y 691, 705 (2012). This article notes that there are other issues with using social media evidence in family law matters, including, but not limited to, the best evidence rule and finding and preserving social media evidence. However, the focus of this article is on the admissibility of social media evidence, namely relevancy, authentication, and hearsay concerns.
5. Fed. R. Evid. 403
6. Emaa W. Sholl, Exhibit Facebook: The Discoverability and Admissibility of Social Media Evidence, 16 Tul. J. Tech. & Intell. Prop. 207, 219 (2013).
7. Id. at 220.
8. Conn. Gen. Stat. § 45a-719. See also Del. Code Ann. tit. 13, §722; Fla. Stat. Ann. § 39.810; Ga. Code Ann. § 15-11-26(1)-(9); Nev. Rev. Stat. § 125C.0035; N.D. Cent. Code § 14-09-06.2(1)(i)(j); Tenn. Code Ann. § 36-1-113(i); Tex. Fam. Code § 263.307(b); Vt. Stat. Ann. tit. 15A, § 3-504(c); Va. Code Ann. § 5-2501(e).
9. Gregory P. Joseph, What Every Judge and Lawyer Needs to Know About Electronic Evidence: Authentication, Joseph Hage Aaronson, LLC, https://jhany.com/2015/06/15/what-every-judge-and-lawyer-needs-to-know-about-electronic-evidence-authentication/.
10. Fed. R. Evid. 901.
11. United States v. Clayton, 643 F.2d 1071, 1074 (5th Cir. 1981).
12. Joseph, supra note 9 (citing Campbell v. State, 382 S.W.3d 545 (Tex. App. 2012)).
14. State v. Hannah, 151 A.3d 99, 102 (N.J. Super. App. Div. 2016).
15. Joseph, supra note 9.
16. Fed. R. Evid. 801(d)(2); see also Sholl, supra note 6, at 219.
17. Eileen Tilghman Moss & Melissa Plunkett, Social Media Postings: Admissibility Under the Federal Rules, 60 For Def. (DRI), no. 7, July 2018, at 75 (2018).
18. Angela M. Scafuri, Authentication and Admissibility of Electronic and Social Media Evidence in Family Law Matters, 310 N.J. Law. 47 (2018); see also Fed. R. Evid. 803(1).
19. Scafuri, supra note 18. See also Fed. R. Evid. 803(2).
20. Moyer v. Siemens VAI Servs., LLC, No. CV 11-3185, 2013 WL 12308402, at *1 (E.D. La. June 28, 2013).
21. Scafuri, supra note 18.
23. In re K.W., 192 N.C. App. 646, 650–51, 666 S.E.2d 490, 494 (2008).