Before You Post: When Social Media Becomes Evidence in a Custody Dispute

David Bulitt: [00:00:00] Welcome to JGL Law for You. JGL Law for You is a podcast by lawyers, but not for lawyers only. On JGL Law for You, we will be discussing a wide array of topics to help you navigate the many legal processes, developments in the law, other current events, and how they may affect you, your family, or your business.

I’m back here with my partner and family law expert, litigator, family lawyer in Maryland and the District of Columbia, Chris Castellano. Welcome aboard, Chris. Good to have you back this month.

Chris Castellano: Thank you again, David

David Bulitt: Today we have a very interesting and somewhat different conversation. We’re peeking into the news, and anyone who has not been under a rock or looks at the news has been advised of or seen information regarding the Lindsay Clancy trial, which is taking place in Massachusetts as we speak.

This is a young woman who was accused of, and has since admitted to, murdering her three young children. Now, we are not here [00:01:00] today to talk about the merits of that case, the merits of her insanity defense, or any other such thing, but what the case does is bring up a very interesting, interesting issue that arises in the area of family law, and that is specifically what effect, if any, can the use of social media, and many of us have our Facebook pages, our Instagram pages, X, LinkedIn, and various other social media platforms.

What effect can our posting, the information that we put up on those social media pages, have on our own custody cases? So, Chris, take us off and let’s start there. And I know we’ve got the Clancy trial as a backdrop. We’re going talk more about that, but let’s talk specifically at the moment about the impact and then concerns about social media postings on a divorce or custody case.

Chris Castellano: Yeah, David, I mean, it’s [00:02:00] always such an interesting issue. You know, social media is so ubiquitous, and it has been ubiquitous for quite some time now. You know, it’s relatively old hat to say that this is new technology that can be used against you in a trial, right? You know, we’ve, we’ve had, since I’ve been practicing, we’ve had social media that is evidence and can be used as evidence in a trial.

But whenever we have some topic that enters the social zeitgeist, which is right now, this Lindsay Clancy trial, this issue comes up again, which is people going out there and, and posting their opinions, posting their thoughts, posting their analyses, and the question variably becomes, “Is this going to play a part in my custody trial?”

Right? You could say the same about your alimony trial or hearing or your, you know, request for some type of distribution, your family or, or any other non-family related litigation certainly. But [00:03:00] for our purposes today, yeah, how can it affect custody? And we’re not suggesting, just to be clear to our listeners, we’re not suggesting that you can’t use social media, you can’t use your right to speak to post an opinion.

The question that I want to instill in our listeners is when you post something online, are you comfortable explaining what that post means to a judge? Right? ‘Cause that’s the question. You can post whatever you want all day long, and that’s fine, but are you prepared to explain what that post means to a judge in the context of a custody case?

David Bulitt: Tell us a little bit about how someone’s posts can become evidence. What sort of factors can they support in either the other side’s argument or their own argument that they’re fit or unfit for custody?

Chris Castellano: Well, that’s right. Here in Maryland, the court is looking at the best interests of the children or a child in a custody case, right?

There’s a [00:04:00] host of different factors. We have a podcast where you and I discuss those factors, if I am not mistaken, in the beginning part of the summer. And so our listeners can go to that podcast and get a primer on the factors in Maryland. But those factors are implicated, or can be implicated rather, in your various different forms of evidence and, for our purposes today, the social media posting.

So, factors such as your parental fitness, your character, ability to communicate with your other co-parent, willingness to communicate with your other co-parent, supporting the relationship between the other party’s extended family or their family, and overall judgment, right? Overall judgment I saw a post this morning preparing for this podcast, and it was a, you know, young mother frustrated with her baby and, uh, went in to the baby’s room saying, “I just tried to put this kid down three times, and won’t stop crying.

I fed you, I burped [00:05:00] you, I did this and that and the other.” And in the video was yelling at the kid, right? I mean, I get it. It, it could very well be that there’s no kid in that video, right? ‘Cause they didn’t show the kid – And, and so you, you have to remember that a lot of these videos that we’re seeing online, they’re, you know, a lot of the internet’s created for the purposes of getting a rise out of people.

Okay, set that part aside. Let’s assume for the purposes of our discussion that these are legitimate videos, and you have a case against your spouse, and he or she is making these videos online yelling at that kid, right? So, what does that video show? That video shows, number one, a judgment issue. Number two, a fitness issue, right?

And number three, it shows a willingness to act as a guardian of that child in that moment, right? If you’re, if you’re yelling at that child, a defenseless infant crying, right? You know, what does that say to a judge? And that’s what we’re focused on. And how do you use this as [00:06:00] evidence? Well, whether it’s a static post or whether it’s a video, it’s going to be utilized in the same way as your emails were utilized, the same way as, as pictures from a detective were utilized, right?

It’s a matter of printing off that post as the, in the lawyer’s office, and we bring in three or four or five copies and, and hold it up to the judge Right? Or if it’s a video, we roll in the TV, plug in your computer, and there it goes up on the screen. We mark it as an exhibit, and it goes into the repository of that case as far as evidence goes, and the judge is going to consider that piece of evidence.

David Bulitt: Yeah, I mean, people, and we’ve found this, I know you have and I have, it often doesn’t matter how many times their lawyer talks to them about what their testimony ought to be or how they’re prepared. People often in custody cases want to make themselves look like terrific parents. And many, many times I have seen, I’m sure you have, parents say, “Oh, no, I don’t yell at my kids.

I speak, I don’t yell [00:07:00] at them.” Well, first of all, I’ve never met a parent who didn’t raise his voice, their voice to a child once. Okay? So the “never” hurts. And then, then we pull up this Instagram post, you know, where he or she is screaming and pulling their hair out and the baby’s screaming in the background.

That’s a sort of a, a more benign issue than what we’re talking about in the Clancy case, but that’s a damaging piece of evidence, something along those lines. So, let’s talk about context and how that changes or can disappear sometimes when a piece of social media, a social media post, reel, story, whatever it may be, is being recreated in a litigation context.

Chris Castellano: Well, that’s right. This is tough. The ability to communicate is one of the more difficult concepts in human history, right? The Tower of Babylon comes to mind, right? So, what we’re talking about here, that ability to communicate and communicate those thoughts itself, it’s exaggerated because when you [00:08:00] and I talk, we talk separately, right?

We’ll have a conversation. If that conversation was written down or put into a different sphere, then the context in which we were talking is lost, right? That’s the basic concept of, of what we’re talking about here. When you make a post, or let’s just say you’re at a playground, you make a video, and, and your kid’s running off, and you say, “Man,” to your best friend, “It would be a lot easier if I just left, go get a drink,” and then I came back ’cause they’re sitting at the playground, right?

Well, you and I in the context of a custody litigation, we would say, “Man, leave him for 10 minutes to go get a drink is a terrible fact pattern.” That is a terrible fact pattern. But in the context, the person’s, “No, this is just a sarcastic joke,” right? They could be just making a joke about the fact that they’ve seen other people saying ludicrous things online, and they’re…you know, so that context can get lost very, very quickly.

You know, it’s interesting. What comes to mind to me in this [00:09:00] conversation is the episode from The Office where Steve Carell’s character is giving a deposition, and he does one of those that’s what she said jokes. And the deposition court reporter reads it back, and he says, “Well, you know, the delivery’s all wrong,” right?

And so that says it best, right? When you’re in litigation, in the context of litigation, how something is presented can change drastically and not only by just the delivery itself, but by not presenting the full context.

David Bulitt: And again, alongside of that, right, is understanding that the audience to whom you intend this post to be your, your 1,100 followers or whatever it may be, may not at all be the audience who is looking at it later and wondering what you meant by this particular post.

This kid is driving me nuts. I’m going to jump off of a bridge. I’d like to blow my brains out. I gotta get out of here. I may never come back. You know, that may be jokey kind of things, and in [00:10:00] the context of a video where somebody’s laughing and smiling, it may look very, very different when you’re in a different ballpark.

Chris Castellano: Well, that’s right. And you know, a good takeaway for people, especially if you’re in contested custody cases, active litigation, this should be on the forefront of their minds. But even if you are not there, but you suspect that maybe in a couple years you’re, you’re angling towards that position, who is not amongst your followers and fans and people that you usually digest your media?

You know what? You should assume it’s the judge. The judge is not your follower. They don’t know what you typically say. Opposing counsel, that’s not your follower, right? And so they’re going to sit there, you’re going to be on the stand, and they’re going to ask questions like, “You wrote this, right? You know, this angry post about your kid.

You were talking about your child, weren’t you? And you were angry when you wrote it, weren’t you? And yet you’re asking the court to make you primary physical custodian,” right? So, you’re going to [00:11:00] have to reckon with some of these posts, and the more posts you make, the worse it may be for you.

David Bulitt: Again, not necessarily for all of us, but for certainly for folks who are potentially separating, divorcing, or alternatively getting some sort of a custody dispute with their co-parent, there’s one sort of golden rule they should follow, isn’t there?

Chris Castellano: Well, that’s right. When you’re posting about your family, one of the golden rules, a golden rule, is to just kind of keep your head low. But assuming that we don’t tell them to interrupt their whole lives, that golden rule is keep the focus on your kids. Right? Keep the focus on your case. The court system and the judges, their primary focus is the best interest of those kids.

And, so, if you can keep your public-facing statements, posts, whatever it may be, as easily explainable relative to the best interest of your kids or focus on your kids, I think that you’re okay.

David Bulitt: [00:12:00] I think that, again, running alongside of that is sort of the same rule that I used when I talked to lawyers about responding to an email, when emails were in their early days of electronic mail, because it’s always easy to send a response, hit send, and go without thinking about it.

And I tried to counsel lawyers to say, “Hold on. Type what you want, but don’t hit send. Come back to it a few minutes later, and then make sure that’s what you want to say.” And some … And in some way, it’s sort of the same, isn’t it, with a social media post? You post this, what you think is funny, you think it’s great.

Don’t hit that post button so fast, right? You want to hang on a second and say to myself, “This isn’t necessarily how my friends are going to interpret it. It’s how somebody else might interpret it,” right?

Chris Castellano: Aabsolutely, right? I mean, as a young lawyer, we all learned, I learned, that every single word you write will be read by a judge.

You have to assume that every single word you write, every email, every letter, [00:13:00] and certainly every document you file in court, right? If every single word that you write could be read by a judge, well, you as a client, you better believe that every word you write in the context of a custody dispute is open to being read by a judge, and that goes the same for every word you speak in a recorded format.

If you are present publishing it, whether email and writing or, or on an Instagram Reel, yeah, you better believe that it is out there and available for the judge.

David Bulitt: Tell folks who are listening, if you can, what are the most dangerous, most inappropriate, those posts that you just should not hit that post button when you are on the precipice or in the midst of some sort of custody dispute or litigation?

Chris Castellano: Yeah, so we touched on this a little bit at the top, but … And it depends on how, what your level of humor is, but on a joking type of post, the [00:14:00] more sarcastic, the drier the humor, whatever it may be, you ought to be careful with that, right? Because not everybody shares that level of sarcasm. But from a base level that we can all understand, posts that vent your anger, that talk about discipline and disciplining your children, you know, opinions about it, whatever it may be.

Posts about your own mental health, about your substance abuse or substance abuse history, or certainly your ability to handle the kids, right? Or frustration with handling the kids. All of those, you know, there may be extremely legitimate reasons to talk about these issues for a person. It may allow them to cope with these issues.

There are very valid reasons to have these thoughts and write some of these words out. But the question is, and we as family law litigators, you know, I tell people all the time, “Listen, in my perfect world, [00:15:00] in my selfish world as your counsel, what would I like your evidence to look like? Well, it doesn’t include X, Y, and Z,” right?

So, in my selfish world where I’m talking to our audience, if I had the ability to clean slate it and make sure that you don’t post X, Y, and Z, it’s going to be posts like this that are anger fueled, talking about mental health or, or your inability to care for the kids.

David Bulitt: How about posts about the other parent? Or sometimes you see posts about what’s going on in the midst of your litigation.

Chris Castellano: You should, as a rule of thumb, never post online about the litigation. I don’t care what type of contested case you’re in, whether it’s a landlord-tenant, whether it’s a mergers and acquisition, a criminal trial, or certainly in our context, a custody trial, right?

Never post anything about … I challenge you, David, to find a single lawyer out there in the world that would say anything contrary to this, right? Never post anything online about [00:16:00] litigation. That’s first and foremost. I guess it should be said based on what we’re seeing online, but never complain about a judge, right?

Never complain about the judge you’re dealing with. Don’t complain about opposing counsel that you’re dealing with. Don’t complain about the other spouse or the other parent. Certainly don’t complain about the kid. These are all things that you would think we shouldn’t have to say out loud. Evidently, in a world where rage posts get engagement, and as a result you get more views and clicks and therefore revenue, you know, this is something that we need to say.

David Bulitt: So let’s talk a little bit about from the outside looking in, and this is where what we’ve seen, and folks, if you were to look up on, you know, Instagram or Facebook or X, the Lindsay Clancy trial, you will see thousands, tens of thousands, maybe hundreds of thousands of comments, from people about either her, in some fashion generally about her, about her [00:17:00] kids, about the family life that she had.

How can those types of posts be dangerous? In other words, it’s not … I’m not commenting on my life. I’m not commenting on, you know, what’s going on in my case, but those kids must have really driven her crazy for her to do that. Those kids must have been really difficult, or alternatively, she deserves to burn.

Anybody like that should be … You know, those types of … You … I think you call them rage post or anger, inflammatory-type comments from the outside looking in. How, if at all, can those affect my case?

Chris Castellano: Well, that’s right. Again, it should be said that what we’re not suggesting is that people aren’t allowed to have an opinion.

Everyone’s allowed to have an opinion. The basis of this country is having an opinion and being able to speak that, and the more unpopular the opinion, the, generally speaking, the law should protect more, right? So we’ll set that part aside, but what we’re talking about is the consequences of [00:18:00] those opinions and voicing those opinions, right?

And especially when you have these inflammatory circumstances like the Lindsay Clancy trial that seem to have very different camps of support, you know, you do have a situation where you’re going to get more posts that are trending towards the extremes. And when you have those extreme posts, they become available in the context of a contested custody case, just like you said, right?

So, if you’ve got … You may have even seen it, but there is a number of posts popping up with parents chucking water at their kid. You saw those, right? Something like that, if you’re separated and you see your spouse throwing water at your infant child, that’s going to make you say, “You know, I’m going to bring this to the court’s attention.

This is abusive behavior,” right? And it may not be or it may be, but this is something that you’re creating an issue solely because of content that you created to [00:19:00] get engagement, right? And that’s what you want to avoid. I saw a video that said one person was walking by a wood chipper, right? And, you know, had these, “Just like Lindsay, I have these intrusive thoughts,” or something to that effect, right?

We can’t be normalizing this type of behavior and again, within that context that people are posting this stuff so they can get engagement. I’m not going to ignore that. But you put this out there, it’s going to be available to an opposing counsel, right? As long as that opposing counsel’s paying attention, doing their job, you better believe that that’s going to be Exhibit A, and you’re going to bring that in and say, “Your Honor, you’ve got to be concerned about this.”

David Bulitt: And people will say, and I actually was involved in a case recently where the other side said, “Well, you know, it was just a trending video. She was just doing something trending on Instagram because, you know, she’s trying to build followers,” whatever the … But it was inappropriate when you [00:20:00] looked at it by itself.

And my reaction, of course, was, “I don’t care what it’s trending. What it’s telling me is that there’s a societal problem when you are doing things to your children that you ought not be doing, even if you think it’s funny.” And so people lose sight of common sense a lot when it comes to social media posts.

Or, you know, or like we said, when we’re talking about what’s going on in a case that’s highly publicized, like the Clancy trial.

Chris Castellano: Well, that’s right. And, and what you don’t want to do is glorify what is generally or should be generally viewed as kind of unacceptable behavior, whether that’s violence, whether that’s, you know, abuse of kids.

And I’ll go the other direction, too. That’s minimizing mental health issues or substance abuse issues or whatever it may be. The best course of action, have an opinion, but generally speaking, keep your opinions to yourself. I think that that’s advice that most of [00:21:00] the internet-consuming world can probably take.

David Bulitt: Now, I want to talk to you briefly about … We touched on this a moment ago, and but let’s talk about the credibility gap that can occur between one’s testimony and what is able to be mined on social media.

Chris Castellano: That’s right. So, this is classic. How many personal injury cases are, you know, “I have a diminished quality of life?”

Person A, why is there a picture of you skiing, right, down in, Lake Tahoe? So, this is the issue, right? If you testify that, “I never drink. I never drink,” just like you referenced, right? You’re using these absolutes. “I never, I never do X, Y, and Z.” Okay. Well, Your Honor, Exhibit A. Here she is out there at the club drinking, or here he is on the back porch with a handle of vodka or whatever it may be, right?

These are not situations that you want to walk into, right? Social media exposes you to that. Now, are we suggesting that you should destroy your [00:22:00] social media, whether you should avoid posting this so you can’t get out? That’s not what we’re talking about, right? What we’re talking about is to be smart about what can be used at trial, right?

And it’s your own statements. It’s your own statements. And if you’re saying, if you’re representing to the court a particular point of view or a particular statement about yourself and you’ve got social media examples out there that contradict that, then you have to anticipate you’re going to have a problem with that, right?

If you’re saying that, “I can’t afford to even go buy groceries,” and you posted on Instagram how you just got a brand new Louis Vuitton purse, that’s going to be problematic for you.

David Bulitt: Yeah, that certainly would be problematic. To sort of try to wrap things up, which is difficult to do in this context because there’s so much to talk about, if you could, give the parents out there some practical rules, two, three, four, five real rules that [00:23:00] should always be followed when they’re looking at engaging online in social media.

Chris Castellano: So, don’t litigate your case on the internet. Don’t do it. Don’t attack the other parent. As you referenced earlier, don’t post when you’re angry, when you’re upset, when you’re having trouble, a, a dark moment, whatever it may be. And be cautious about what you’re posting online. If it’s a joke, if it’s sarcasm, especially if the context of your joke or sarcasm is violence, drugs, alcohol, anger at your kids or whatever it may be, right?

And then one of the big takeaways, and I said it a couple times throughout this podcast, is how comfortable am I explaining this to a judge? Right? That should be your takeaway. If you post this, if you go on your phone and you’re ready to post this video about you complaining, the next question should be, “If I am asked by a judge what this post meant or what I meant by it, what’s my answer going to be?”

And [00:24:00] if I don’t like the answer, don’t post it. It’s as simple as just don’t post it.

David Bulitt: Yeah, I mean, people have to understand, these things get blown up to 20 by 24 poster size things, or they’re on a big giant TV screen in the middle of a courtroom. And how’s that going to look, right? How’s it going to look?

Chris Castellano: They’re inflammatory in size, demonstrative in size, and notwithstanding the fact that it’s going to be raised in your opening, it’s going to be raised in your closing, it’s going to be an hour’s worth of time during direct testimony of going back and forth or arguing. It’s going to potentially be a source of aggravation or combativeness between you and the judge.

How many times have you seen that, where the judge tells you to just stop and he’s talking to your client directly, right? I mean, these are the risks that you take on when you start interacting in that way, and you know, it’s the most preventable outcome that you can come up with. Just don’t post it.

David Bulitt: And [00:25:00] oftentimes, like you said, it’s not even, it’s not necessarily the content so much as it establishes a significant credibility gap when people want to, as we talked about, want to portray themselves in a certain fashion, but this evidence seems to show something different. All right, Chris. I mean, you know, again, we could go on and on.

I know, I think they’re having, as we speak today, they’re doing closing arguments in that case. But folks, pay attention to it, take a look at the evidence that was put forward in that case, which is, in my view, particularly damaging for the defendant, Ms. Clancy. But in the context of this discussion, in the context of your life going forward, if in fact you are nearing or looking at the possibility of a custody dispute with the other parent.

Chris, as always, it’s been a pleasure. If folks want to get a hold of you, let’s tell them again how to do that.

Chris Castellano: Yeah. Find me on our jglaw.com website. Give me a call at 240-399-7881. Call me directly, and I’d be happy to talk about [00:26:00] this or any other issue you have.

David Bulitt: Excellent. Well, as always, like I said, it’s been a pleasure.

I love doing this show. I love talking about things that are in the news. And, Chris, thanks for bringing this up today. Folks, I hope you enjoyed this, I hope you’ll listen, tell your friends about it, and I hope you join us next time on JGL Law For You.