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You don’t have to be perfect, but you do have to be mindful

Some custody proceedings are amicable affairs; some are antagonistic. With social media becoming more and more integrated into our lives, particular our social lives, when a divorce or custody dispute turns contentious parties can be quick to try and dig up dirt. If there are unflattering, unsavory, or maybe even risqué posts on your social media profiles you can almost be certain that the other side will seek to use them in whatever way they can, particularly when child custody is on the line. You cannot delete those pictures once litigation has begun given the law of spoliation, however there are ways to minimize the impact of your “less than finest” moments online.

In 2022, in Stanley v. Edwards, the Court of Appeals of Georgia was faced with the question of what role social media posts should play in determining whether there was a material change in circumstances that warranted changing the custodial arrangement between the parties. Among the many grounds the party seeking custody asserted as constituting a material change in circumstances were the “questionable morals” of the current custodian evidenced by several social media posts. The party seeking a change in custody introduced several social media posts, some showing the current custodian dressed up to go out with friends with music lyrics quoted over the top or captioned below, some containing curse words, some containing the custodian with their middle finger up, some insinuating that the custodian had several “live-in” partners, and some which the party seeking custody asserted showed that the custodian was working “as an escort.”

The Court of Appeals was unconvinced that these social media posts amounted to a material change in circumstances because there was no evidence that these posts (1) were seen by the children whose custody was being contested; (2) were indicative of the way the custodian behaved when they were parenting the children; or (3) had any negative effect on the children. The custodian testified that they were unaware that one of the children had a Facebook account, however there was nothing showing the children had seen the posts and the conduct of the custodian therein or been impacted negatively by the complained of behaviors in the posts. The evidence which consisted largely of continuation of long patterns of behaviors between the parties and testimony about the custodian with no connection to their parenting or any adverse impact to the children demonstrated to the Court of Appeals that the behavior and posts complained of was not a material change in circumstances.

The Court of Appeals concluded the opinion with this quote:

Too long have courts labored under the notion that divorced parents must somehow be perfect in every respect. The law should recognize that parents, married or not, are individual human beings each with his or her own particular virtues and vices…. In domestic relations cases the courts should recognize that all parents have faults, and look not to the faults of the parents, but to the needs of the child.

The throughline in Stanley v. Edwards is this: in some instances, a parent’s immoral conduct, their own personal vices, might warrant limitations on contact between them and their child but only if it is shown that the child is exposed to the parent’s undesirable conduct in a way that has or would likely adversely affect the child. The bottom line is the law does not require you to be perfect, but it does require you be mindful; mindful of your own particular virtues and vices and mindful of how any of those vices may negatively impact your child. You should govern yourself accordingly.

Felix Kloc