Social networks are transforming how relationships begin and end. One in five relationships now starts on social networks. But social networks also contribute to breakups and divorce. Instead of catching a whiff of another woman’s perfume on your husband’s shirt, you might instead find an X-rated photo that your husband accidentally tweeted to a woman in public mode rather than private mode. Or—as happened in a Connecticut case—your husband and his girlfriend might be sending each other Facebook gifts such as “Love Birds” and posting about the need for discretion. (Husband: “[n]o more Facebook. . . to public for me.” Girlfriend: “LOL o.k. under the radar . . . flying low. . . ”)

Social network information can be a smoking gun when people divorce. In an American Academy of Matrimonial Lawyers poll, 81 percent of divorce attorneys mentioned an increase in the use of social networking evidence over the past five years. Most of that evidence was found on Facebook (66 percent) or Myspace (15 percent).

Posts or photos indicating that one spouse cheated or has dangerous habits can help the other spouse receive more money in the split or gain sole custody of the kids. Divorce lawyer Linda Lea M. Viken recounted a custody battle where a father posted on his Facebook page that he was “single with no children looking for a fun time.” Divorce lawyer Kenneth Altshuler said, “Facebook has made it very easy to show lack of credibility and that is what can win a case. Once you catch them in one lie, nothing else they say is credible to the judge.”

The only way to guarantee that your posts won’t come back to haunt you in a custody case would be never to have had a social network page or to act like a Stepford parent and post only positive and glowing things about your every moment with your child. (Perhaps even doing that would backfire since it could be used to show that you are too enmeshed in your child’s life and won’t give your child enough space to grow.) Erasing a page you’ve previously created or deleting your social network presence entirely won’t help. Projects such as the Wayback Machine have probably captured screenshots of that page in its earlier incarnation.

Since parenthood is rewarding, demanding, and frustrating all at the same time, people may unthinkingly blurt out their frustrations in social media. What if you once tweeted that you didn’t want children? Should that statement be used to terminate your parental rights? In In re T.T., a Texas case, the court allowed such a statement from a dad’s Myspace profile to be used against him. What if you failed to mention kids on your Match.com profile? Would that show you were a bad mom? How about if you said, “I love my motorcycle” or “I love my iMac” but didn’t mention your children? Would that indicate that your kids played second fiddle to your possessions? 

My personal view is that any social network statements about the child should be kept out of the case unless they indicate that the parent is likely to harm the child emotionally or physically. And a lack of statements about the child (or even a statement that one doesn’t have children) shouldn’t be used as a way to show parental unfitness. 

As technology makes surveillance easier and cheaper, courts are grappling with how to apply the Fourth Amendment in the digital age.  Prior to beepers, GPS, people checking in on Foursquare, and social networks, law enforcement monitoring of suspected offenders was limited by the constraints of manpower, budget and the risk that the officers following suspects might themselves be seen. 

But now an increasing amount of information about people’s whereabouts, activities, purchases and intentions can be gleaned digitally, without an officer ever leaving the station.  The U.S. Supreme Court’s decision this month in United States v. Jones provides little guidance about which activities might be considered searches, which require warrants, and which voluntary disclosures to third parties might waive Fourth Amendment rights.