Using Online Evidence in Texas Child Custody Litigation

Using Online Evidence in Texas Child Custody Litigation

Access to the Internet has impacted the practice of Austin family law in surprising ways.

The introduction of social media has had a large impact in custody litigation. One would think that as social media is so easily accessible, this would force parents to remain positive and mindful of what they put out for everyone to see and read. However, like a moth drawn to the fire, people cannot help themselves in posting pictures of doing boneheaded things with their children present, or blogging about illegal or ill-advised activities, or starting a twitter war with the other parent. As society has trended towards documenting their daily lives in open forums, Facebook has become a staple of child custody hearings.

I recently dealt with a case where the transfer of an alleged sexually transmitted disease was the issue. The mom was claiming this to be the case where the father threatened her life with cancer. However, when we were able to pull the posts from her facebook, she had discussed with many of her friends within facebook that she didn’t have any disease or cancer. I have’ had other situations where a dad wanting to have primary custody or more than standard possession posted pictures of himself in various stages of intoxication, brandishing both photos and video of different kinds of weapons, and racial slurs and highly negative comments about the mother of his children. Needless to say, that hearing didn’t go well for the dad. Another recent hearing I was involved with was related to the custody of a 4 year old son, where the mom found out about her husband of 10 years’ affair with his 21 year old girlfriend from a facebook posting.

Needless to say, people just can’t help themselves and social media is a relentless and fertile world of evidence waiting to be harvested against a client by the careful and creative practitioner. Of course, on the other side, the practitioner representing the party with the bad postings should be very careful in how to deal with that evidence to avoid issues related to destruction or modification of evidence and spoliation because, as we all know, it’s never really deleted even when it’s been “deleted”.

Additionally, with the wealth of information available on the internet, parents have become more self-educated regarding divorce and custody. However, this sometimes works to their detriment. It’s one thing to play attorney on TV and another to try and play one in real life in a custody situation where the relationship with your kids is on the line. The old adage of “garbage in, garbage out” is very apt in describing some of the information available on the internet. Sometimes a large majority of initial time a practitioner must devote with their client is debunking, or what I like to call “unbundling”, their client’s misinformation gleaned from urban myths, family and social sources, antiquated social norms, and websites created for the sole purpose to rail against “the system.”

parents know before they even enter child custody litigation that they will share custodial responsibilities. Most even have some knowledge and basic understanding of custody, conservatorship, and options for possession and access. With the sophisticated client, this gives the creative practitioner the ability to manage a more “nuanced” strategy with the client as they have a firm grasp and understanding of the basic legal fundamentals at stake. This is important, as in my experience and observation, many times these issues turn on nuances when in front of a judge. For example, mom always said it’s not what you say as much as it is in how you say things. Communication styles, not necessarily substance, can have a significant impact in a courtroom.

In these cases, whether parents will be awarded joint custody is typically not the question. Instead, the parties must focus on much more nuanced issues involved with exercising custodial decisions, such as education, medical, mental health issues, extracurricular and summer activities. This is especially true in the situation where a child has special needs.

The idea of a gender bias in favor of the mother are largely gone. Additionally, courts have begun to rely less on the “tender years” presumption that young children should be placed with the mother, and are now focusing on parents’ capability to care for their children at any age. The only exception to this general trend is as it applies to newborns, in which case mothers have a distinct advantage. Even so, courts are more willing than they were in the past to grant more visitation time to a father who is capable of caring for his child. In fact, in my observation, a Dad who wants, is willing, and is capable of putting time in with their infant child carries a premium with the Courts.

This makes sense in an era in which there are more stay-at-home fathers and working mothers. And, in this era, Fathers today are much more willing to fight for their parenting rights than they historically were. This has caused a significant erosion of the gender bias and the gender gap has fallen. Likewise, ethnicity and sexual orientation rarely, if ever, factor into a judge’s decision regarding custody. Rather, the issue here, is how that may, if at all, translate to the children and their best interests.

Age, however, may be an issue if one of the parties is especially young, and the court does not think the parent has attained the necessary maturity level to make important decisions regarding the child’s welfare. Or, has a demonstrated history of making poor decisions, instability, criminal history, or history of alcohol or substance abuse. It is often times in these circumstances the practitioner should talk to the client about being creative and bring in a parenting coach to assist them and work with them in dealing with a young kiddo. I often find myself having to debunk with my Dad client’s the idea that a parenting coach is needed – as though it sets a negative precedence that he “needs” or “requires” supervision. The opposite has generally been my experience. If handled correctly, and I can’t emphasize that enough, having a professional parenting coach come and testify can turn the entire case around in the eyes of a judge.

Unfortunately, socio-economic status can also come into play if a parent does not have enough money to meet the child’s financial needs. It is in these situations you have to look for family or social support wherever the client can find it and give the court a source of comfort that this parent can be consistent in exercising time with their kiddo and in a safe and responsible way.

EFLG – Family Law Austin, TX

The Law Office of James W. Evans is dedicated to sorting out complicated litigation involving families and families with children. Our Austin divorce lawyers have years of experience handling cases that end in sole custody, shared or joint custody, and creative custody arrangements. Ask about our recent cases.