Digital evidence in family law cases is nothing new. Attorneys commonly use emails and text messages in court to substantiate past communications between spouses. Anyone who is going through a divorce or child custody battle should be aware of the ramifications of social media evidence in custody disputes. In addition, new advances in AI are making awareness of electronic evidence in divorce and family law litigation all the more important.
The team at Desert Legal Group recognizes the challenges families face when dealing with family law issues, especially in the digital age. That’s why our experienced family law attorneys are dedicated to explaining the implications of social media posts and AI-generated photos. We are also parents, which is why we are passionate about protecting your parental rights and seeking the best outcomes for you and your children.
Traditional Role of Digital Media in Family Law Cases
Technology’s role in family court cases is rapidly changing. As such, the Arizona Family Court remains well-informed regarding the role of social media, digital communications, and electronic records.
Let’s explore some of the ways digital evidence can fundamentally change the way a case is viewed by the courts.
Social Media
Social media apps provide important sources of information for both parties in family law disputes. These online platforms offer a chronological window into a spouse’s habits, behaviors, and potential violation of court orders. For example, a parent who is court-ordered not to consume alcohol while in possession of their child may be found to be in violation of a court order if the time-stamped photo shows the individual drinking alcohol.
Social media evidence in custody disputes can also be used to prove good parenting behaviors. If one parent accuses their spouse or ex-spouse of being an absent parent, social media photos could demonstrate a pattern of dutiful and attentive parenting. Any parent who is going through a divorce or child custody dispute should be mindful that anything they post on social media could potentially be admissible in court.
Digital Communications
Even with artificial intelligence being integrated into digital media and online platforms, forms of digital media like text messages in court, emails, and instant messages show no signs of being any less important or relevant in family court disputes. This is especially true in consideration of the fact that few people engage in handwritten correspondence these days, bringing emails to the forefront – for example, the average office worker sends 33 emails per day, and Americans in all professions send emails on a daily basis.
In family court, emails and texts can serve as evidence of agreements and conflicts between parties. In fact, emails are standard forms of evidence in family court. One reason they are commonly used is because they are automatically time-stamped. The order of a chain of communication is preserved in the email thread, and both parties can retain copies to verify the accuracy of the communications.
If one party agrees to something via email or does not raise objections but later does so in court, the email can show that the complainant did not have a problem with the issue at the time. Emails can also show where two people disagreed and when. Emails discussing parenting plans or financial matters could play an important role in court decisions.
While verbal disagreements may be difficult to dispute, any form of digital communication is more formidable evidence in court. This does not mean that specific digital communications cannot be thoroughly examined and substantiated. As with any type of evidence, both parties can scrutinize the email and call into question whether the communications are relevant to the topic at hand.
It is also important to consider that the tone and verbiage used by one spouse in an email may be viewed unfavorably in the eyes of the court. Spouses going through a divorce should remain neutral and civil when communicating with their spouse or former partner using digital messages of any kind.
Electronic Records
Paper records are becoming increasingly rare in this country, and companies have moved from physical to digital records. During a divorce, financial records are one example of a digital record that may be requested by opposing counsel or admitted as evidence during a hearing or trial.
Smartphones and smartwatches now allow for location-tracking capabilities, many of which produce a digital location record. These may prove useful when attempting to prove compliance with child visitation orders.
If you arrived at a specific location at a specific time for a child exchange and the other parent was not there, that could be used to demonstrate that you complied with the court order and the other parent did not. Location-tracking devices could also be used against you, so be mindful of when your phone or smartwatch has these features activated.
Online calendars like Google Calendar and other digital scheduling tools are important tools for managing time and setting reminders of parenting schedules. These tools help organize co-parenting efforts and ensure that court orders are followed. In addition, if a dispute arises, the digital calendars can demonstrate the commitment of one parent to remaining involved in their child’s life. A well-organized digital calendar provides time-stamped evidence that certain events were scheduled well ahead of time and that the parenting event took priority over anything else.
For example, one parent’s documentation of school events, medical appointments, and other events can demonstrate a record of attentiveness. If accusations of absenteeism arise, the digital calendar can offer evidence that refutes those false accusations.
The Potentially Damaging Role of AI and New Photo Editing Apps
The popularity of photo-editing apps has serious implications for family court cases. Doctored images could pose evidentiary challenges. For example, one parent could use the technology to manipulate a photo as a means of making someone appear to be engaging in dangerous or reckless behavior that could be seen as child endangerment.
However, parents could also use the technology in an attempt to strengthen their case. They could remove people who have criminal records from personal photos. AI can also alter the appearance of home environments. This could be used to manipulate parenting evaluations. Evidence of drug use could be erased using generative AI technology.
Ultimately, the job of scrutinizing digital evidence in family law cases falls on attorneys and judges, who are responsible for keeping up with advances in generative AI and tools to detect doctored photos.
Arizona’s New Digital Evidence Portal
Even as questions about the role of AI in altering evidence become increasingly relevant in Arizona, the state’s courts are making submitting digital evidence easier and easier. Self-represented litigants and attorneys can now easily submit, manage, share, and present evidence using their phones or other devices.
Participants can upload videos, audio clips, photos, and other files to this user-friendly online platform. Case Center enables all case participants to log in and manage evidence from anywhere with internet access.
According to the state, the Case Center has reduced paper use, improved efficiency, and minimized delays in the court system. Courtroom clerks start cases in the Case Center and send participants a link to upload their exhibits. This process saves clerks time at the beginning of hearings, as they no longer need to manually mark, organize, and list exhibits. Participants can also review, annotate, and share documents before the court.
Tips for Protecting Yourself During Family Court
Once a child custody or divorce case begins, extra caution should be taken with any form of communication with your spouse or social media posting. Keeping in mind the old legal adage that anything can and will be used against you is a good place to start.
Divorces can become extremely emotional, and it can be tempting to use social media to criticize your spouse or try to demonstrate that your child would rather spend time with you than with them. Those actions would not be viewed favorably by the courts, though, and you may ultimately do more harm than good. Social media posts to this effect can be admissible in family court.
Keep your communications with your soon-to-be-ex and all social media postings neutral and minimal. Even when the divorce is complete, your ex may use your social media posts against you at a future time, so be mindful of anything that you post, as well as anything that you are tagged in.
Keeping up with all the potential pitfalls of using technology while going through a separation or divorce may seem daunting. Fortunately, a simple way to protect your rights in this digital age is by hiring the right family law attorney. Skilled family law attorneys understand how the courts may or may not consider digital evidence.
How a Family Law Attorney Can Protect Your Rights in a Digital Age
Digital evidence is subject to the same scrutiny as traditional physical evidence. The popularity of generative AI products now allows photos to be digitally altered. This raises the possibility that one party could become the victim of falsified images.
Tampering with evidence is a serious offense and one that the courts would take very seriously. Here’s how a family law attorney can benefit you as you participate in a case that involves technological evidence.
Questioning the Relevance of the Evidence
Your attorney can use the traditional practice of calling into question the relevance of the evidence. Any evidence that is admitted by the court must be related to the issues and topics at hand. For example, an old college photo of you guzzling beer would not be relevant to your current parenting abilities.
Questioning the Authenticity of the Evidence
The advent of generative AI programs that can alter or generate images may mean that family law attorneys increasingly question the authenticity of an image. If the portrayed image is completely out of character for one parent or all too easily fits the narrative of one party, the accused party may provide testimony calling into question the authenticity of the photo. AI is improving in its ability to create images from scratch, but the use of AI can still be noticeable in many situations.
Protecting Privacy Rights
Parents in family court still have privacy rights. Any evidence that was gathered without the consent of the other party may violate applicable privacy laws. If one spouse secretly steals data from their spouse, that could demonstrate a pattern of poor behavior that could backfire in court. Unless someone voluntarily shares information on their phone or a search warrant is issued, their private information (especially when it is solely stored on one device) is often protected under the law.
Corroborating Digital Evidence
The authenticity of digital evidence can be called into question when it conflicts with photographic evidence, witness testimony, and documentation. When compared with other related forms of evidence, the context of digital evidence could completely change. A skilled attorney can assemble conflicting or corroborating evidence and demonstrate the validity of the digital evidence.
With these benefits in mind, it is clear that anyone who is facing a case in family court should consider the possible perils of self-representation. Without experience in court procedures and applicable laws, a pro se parent or spouse may have difficulty rebutting digital evidence, even when the images are potentially falsified.
Schedule Your Desert Legal Group, PLLC, Consultation Today
The role of technology in family court is continually evolving. As AI becomes more and more integrated into our digital lives, it is important to have a family law attorney who understands how to protect your rights when misleading or even falsified digital evidence is brought up against you. The attorneys at Desert Legal Group, PLLC, are staying updated on the most recent implications of new developments in technology for our clients.
We hold that while technology is evolving, the fundamental rights of our clients have not changed. As such, we are dedicated to ensuring that your family court case proceeds fairly in light of any technological evidence. If you have questions or concerns about how technology, social media, and AI may impact your divorce or child custody case, we’re here to help. Contact our office today to schedule a free consultation.
*Editor’s Note: This article was originally published Sep 12, 2022 and has been updated May 24, 2024.
Sources:
- Mailbutler. (n.d.). Email statistics and trends. Retrieved May 22, 2024, from https://www.mailbutler.io/blog/email/email-statistics-trends/
- Superior Court of Maricopa County. (2024). New Digital Evidence Portal is streamlining family cases. Retrieved May 22, 2024, from https://superiorcourt.maricopa.gov/posts/press-releases/2024/new-digital-evidence-portal-is-streamlining-family-cases/
Attorney Cory Keith is an exceptional legal professional dedicated to providing effective representation for his clients. Driven by the belief in treating others how he would want himself represented, Mr. Keith has earned a name for himself for his unflagging advocacy and compassionate approach to law.
Mr. Keith attended Arizona State University, earning his Bachelor’s in Criminal Justice and Criminology through a full academic scholarship. With outstanding performance, he received another full ride academic scholarship to attend law school, where he demonstrated exceptional leadership abilities by accepting executive roles in various organizations as well as serving as legal clerk at multiple well-respected law firms.