Maryland law requires the court to examine the presented evidence when deciding a custody case involving a mother and father each petitioning for sole or shared custody. In complex custody cases today, this often includes a host of digital evidence that can be used to argue for one parent’s custody rights over the other’s.
Digital evidence is not a new addition to custody cases, but new social media apps and greater technology dependence have increased the amount of evidence available to both legal teams during the case. The advent of AI technology only increases the need for awareness among parents of how digital evidence could be used in their custody cases and how they can protect themselves against defamation.
Custody battles are no longer confined to “he said, she said”; many parents are defending themselves against AI and the unending world of technology.
Here’s what you need to know.
The Definition of “Digital Evidence”
According to the National Institute of Justice, digital evidence includes any permissible digital information stored on a computer, phone, or other device. This opens the door for email files, phone records, social media records, screenshots, computer files, and more to be used as incriminating evidence in court cases, including custody cases.
The role of technology in family law is changing, especially with the popularization of generative AI tools. The Maryland Family Court remains proactive and informed on the ways in which social media, email records, and other digital communications will impact the results of custody cases.
The Role of Social Media in Custody Cases
Social media accounts now provide a wealth of information for both sides of a custody case to use in their arguments. Online platforms such as X (formerly Twitter), Facebook, Instagram, Snapchat, and more keep chronological records of the user’s activity in the form of photos, digital communications, status messages, and posts.
In custody disputes, these communications can be used to prove or disprove a parent’s compliance with court-ordered or legal provisions, potentially changing their custody eligibility.
Consider a case where both parents are ordered by the Maryland district court to refrain from drinking alcohol until custody has been finalized. A single photo on social media can be used, along with its accompanying time stamp, to prove that the parent disobeyed the court’s order.
Importantly, social media can be used to provide positive evidence of a parent’s contributions to their child’s upbringing as well. This can serve to reveal the other parent’s purposeful parental alienation, which is when a parent lies to or otherwise manipulates the child to hurt their relationship with their other parent.
For example, the child’s mother may claim to the court that the father missed appointed visitation times and is therefore unfit to retain custody. However, if the father posted photos on social media at their appointed visitation location, he could use the time stamps as evidence of his ex-spouse’s parental alienation.
How Other Digital Communications Factor Into Custody Cases
In addition to social media, the court will explore other forms of digital communication to verify parents’ claims and assess their custody eligibility. Text messages, emails, instant messages, and phone records can all be used to corroborate claims or reveal new issues in the case.
For example, a parent may claim they missed a court date or visitation for a legitimate reason while their email and text records reveal that they were engaged in some other activity. With a chain of communication perfectly preserved in the digital record, the court can resolve verbal disputes with binding digital evidence.
Even the tone of a digital message can be taken in context as evidence of a parent’s intentions. For example, the child’s mother may claim in court that communication with the father is civil from her end, while the father’s records may reveal another story.
The Rising Role of Apps and Generative AI
There are innumerable potential applications of digital evidence. Today, people track everything, including their schedules, relationships, meals, and more, on their phones, computers, watches, and other devices and social media platforms. The chances are good that a digital record can be used to prove or disprove any claim in custody court.
This is evident when one parent accuses the other of absenteeism, but their digital calendar can prove that they have scheduled important events related to their child. Additionally, location trackers on devices and apps can be used to verify their location at certain times.
This has now raised the issue of whether a digital record can be completely trusted. With generative AI tools in the hands of consumers, photo-editing apps, doctored emails, and even voice generations, anything can be used to defame or exonerate parents unfairly.
Using consumer-grade AI apps, one parent could ostensibly edit a photo to present the other parent as drinking or doing drugs. By the same token, a parent could erase the evidence of their own bad behavior by the same means.
Contact an Experienced Family Law Firm to Handle Your Complex Custody Case
At Milstein Siegel, our team of experienced attorneys understands the evolving role that digital evidence plays in complex custody cases. For over three decades, we have fought for the rights of fathers in Maryland as they face uphill battles against legal teams willing to exploit digital communication to rob them of their rights to visitation and custody.
Contact our team today to learn how we can fight for your rights and find creative solutions to issues related to digital evidence in complex custody cases. Our goal is to help every client reach the best outcome for themselves and their children.
