Family Law and Online EvidenceEnsure you get the information before it's gone.
Family law is complicated enough – your digital evidence doesn’t have to be!
As the divorce rate tops 50%, family law practices are faced with gathering evidence in hostile marital splits, vicious child custody battles and contentious support fights. Family law attorneys have discovered a treasure trove of evidence online. Websites and social media sites like Facebook and Twitter are filled with text and images that can help build a successful case.
There are many risks in quickly collecting time-sensitive web content as evidence. If webpage evidence has been handled by multiple people (or even just one person), the attorney must prove that the information hasn’t been altered. This could mean everyone in the chain of custody must testify or provide an affidavit that states they have not tampered with the evidence. This is true for all types of web evidence, but for family law there is a very real incentive to fabricate evidence in emotionally charged family law cases, some people may even go as far as creating fake screen captures.
Strong Digital Evidence Criteria
As webpage captures become more mainstream, courts are growing increasingly cautious about what they will allow.
More and more courts are requiring that webpage images accurately represent the page at the time of its capture.
Metadata, such as a timestamp, URL, and IP address, is key in proving that a screen capture provides an accurate representation of a webpage.
You should obtain an affidavit that the chain of custody on any piece of evidence was maintained, especially for something as easily altered as digital evidence.
The risks of using manual capture tools
Whether used to prove child abuse, adultery or evasion of child support payments, computer generated evidence used in court is here to stay. Many family law attorneys use social media posts, photos, comments and even chat room conversations to prove their case.
Since most family law attorneys manually capture and store evidence gathered online, meeting even the most minimal standards listed above can be difficult, timely and costly. And since some webpage capture tools aren’t designed with attorneys in mind, many lawyers are presenting evidence that could be rejected by the courts or easily challenged by their opponents.
Using online evidence in family law cases
- Child Custody – In child custody battles where a parent has illegally taken a child out-of-state, Facebook postings have been used as proof that the parent violated a court mandate.
- Divorce Proceedings – Bitter divorce cases have been quickly settled when evidence of a spouse’s infidelity was proven with social media photos and postings.
- Child Support – When parents have falsely claimed they did not have enough earning potential to pay a certain amount of child support, attorneys used LinkedIn posts to prove the parent’s statement was false.