Key Takeaways
- Your posts can absolutely become evidence. Social media shows up in Colorado custody cases all the time — as hearing exhibits, through discovery, and on cross-examination.
- “Private” is a setting, not a legal privilege. One screenshot from a mutual friend sends private material straight to your ex, and relevant posts can be discoverable anyway.
- Don’t delete anything without talking to your attorney. Once litigation starts, you have a duty to preserve evidence, and deleting can create a spoliation problem worse than the original post.
- Patterns matter more than one bad post. Child advocates look for repeated public disparagement, contradictions, and an inability to keep adult conflict away from the kids.
- You have free speech rights, but a court can still weigh what you said. Whether a judge can prohibit speech is a separate question from whether your words are relevant evidence.
Introduction
It’s 11:40 on a Friday night. Your ex was supposed to bring the kids back at 6:00 and showed up at 8:15 — no text, no explanation, no apology. You’re exhausted and furious, and your phone is sitting right there. So you post something. Nothing crazy, you think. You don’t even use a name. Just: “Some people should not be allowed to be parents.”
A few friends like it. Someone adds a hug emoji. A couple of people who know exactly who you mean jump in and agree. You feel a little validated, put the phone down, and go to bed.
Four months later, that sentence is printed out in a three-ring binder, or sitting on a judge’s screen in Golden or Denver, as an exhibit in your custody case.
Krista Nash is the founder of Children First Family Law®, a Colorado family law and divorce law firm serving families in Denver, Lakewood, Arvada, Boulder, Colorado Springs, Greeley, Pueblo, and communities across the state. She is an attorney, mediator, parenting coordinator and decision-maker, and child’s legal representative whose practice centers on protecting children through family conflict.
In this episode of the Children First Family Law Podcast, Krista walks through the relationship between social media and custody: what gets admitted into evidence, what causes the most damage, whether you should delete your accounts, how dating apps and location sharing factor in, and where your First Amendment rights fit.
One note before we start. This is general information, not legal advice. If you have an active case, talk to your own attorney about your specific facts and jurisdiction.
The Question to Ask Before the Legal One
Krista wants to put one thought in your head before any of the legal analysis.
Don’t listen to this and think only, “Okay, tell me what I can post without getting in trouble.” That’s not the whole point. Yes, you need to understand what can hurt your case. You need to understand that something you type in 30 seconds while angry can become an exhibit months or years later.
But there’s another question worth asking before you post anything about your divorce or your ex: Why am I posting this at all? What am I hoping it accomplishes?
If you’re angry, there are people you can talk to about that. If something important happened with your children, talk to your lawyer. If you’re hurting, talk to someone you trust or a mental health professional. Not every part of your divorce needs to be public, and most posting about a divorce ends up hurting the children.
Yes, Social Media Can Be Used Against You
This is what people are actually Googling, and the answer is yes. Social media and custody disputes intersect in Colorado family law cases constantly.
Here’s why it matters. When a Colorado court decides parenting time and decision-making, the judge applies the best interest factors in C.R.S. § 14-10-124. Those factors include the child’s adjustment to home, school, and community; the mental and physical health of the people involved; and each parent’s ability to encourage the sharing of love, affection, and contact between the child and the other parent.
Now think about what your accounts actually show. Where you were. Who you were with. What you were doing. What you were drinking. What you were spending money on. What you think about your ex. What you’re saying about your case. Sometimes you’re saying those things out loud — and sometimes you’re effectively saying them to the judge.
It’s a timestamped record you created yourself. That’s exactly what makes it useful, probative evidence.
Social media reaches a courtroom several ways:
- as exhibits at a hearing;
- through discovery, the process where lawyers request information;
- handed to court-appointed professionals like child advocates;
- on cross-examination, when the other attorney hands you your own post and asks, “Did you write this?”
That last one is not a moment you want to create for yourself.
How a Screenshot Actually Gets Into Evidence
Authentication. Colorado Rule of Evidence 901 requires the person offering evidence to establish it is what they claim it is. Colorado addressed Facebook evidence in a 2015 case, where the court essentially said that a name attached to an account doesn’t by itself prove that person wrote the message.
But there are plenty of other ways to authenticate. Is it your account? Are your photos on it? Does someone recognize it as yours? Is your phone number associated with it? Does the content contain information specific to you?
And think about who’s offering it. It’s your former spouse. That person knows your account, your pictures, your writing style, your nicknames, your friends. They may have been tagged in your posts for 15 years. In Krista’s experience, authentication is rarely the obstacle people assume it is.
Hearsay. People often ask whether a post is hearsay — an out-of-court statement. It can be, but under Colorado Rule of Evidence 801(2), a statement by a party offered against that party is not hearsay. In plain English: your own words can be used against you.
Original writing rules. Rules 1001 through 1004 generally treat screenshots and printouts as duplicates unless there’s a genuine accuracy dispute. Krista rarely sees that become an issue in family law.
Completeness. If someone crops a conversation misleadingly, Rule 106 may allow the rest in so the judge sees context. Krista adds a warning here: sometimes context helps you, and sometimes it hurts, because sometimes the whole conversation is worse than the excerpt.
Rule 403. A judge can exclude evidence when its probative value is substantially outweighed by unfair prejudice, confusion, or waste of time. Is a dumb post from college 15 years ago relevant to your parenting today? Maybe not. But Krista would never advise building a strategy around hoping the judge doesn’t see something. Your night out drinking in recent months is far more probative of your parenting right now.
One more myth worth killing. People assume that because platforms may not turn over private communications in response to a civil subpoena, those messages are untouchable. Stored communications laws do limit what a platform produces. But relevant material can still be sought directly from you through discovery — and failing to produce it creates its own problems.
What Not to Post During a Custody Case
You can’t undo what’s already out there. But you can do a lot going forward, and a visible change can genuinely show you’re turning a leaf, even if you’ve posted negatively about your ex in the past.
Posting About Your Ex
Venting. Vague comments everyone can decode. Memes about narcissists or toxic people. Jokes about deadbeat dads, overbearing mothers, crazy ex-wives, or dads who’d rather be weekend parents.
You don’t have to use a name for everyone to know who you mean. And remember that one of Colorado’s best interest factors is whether you encourage and affirm your child’s relationship with the other parent. Trashing someone on the internet — even allegedly subtly — is an immediate way for the other side to argue you aren’t doing that. A steady stream of public contempt becomes relevant to exactly that issue.
Then there’s the non-legal point. Even if nobody ever screenshots it: that’s your child’s mom or dad. If you need to vent, talk to someone you trust, a therapist, or your lawyer. You don’t need Facebook and a handful of likes to validate your position.
Posting About the Case
Do not live blog your divorce. Krista has had cases where a parent was blogging the divorce publicly, the children found it, and it was used heavily against that parent.
Don’t post about hearings. Don’t mention court. Don’t trash the judge or the other attorneys. Don’t post deposition testimony. And be extremely careful with court documents — just make it a personal rule that you won’t be that person. Some of those documents are confidential, and posting them creates a far bigger problem.
Alcohol, Partying, and Timing
This doesn’t mean you can’t have a life. A photo of you holding a margarita at a friend’s birthday doesn’t make you unfit, and judges live in the real world. Those accusations sometimes backfire on the person making them.
But a pattern matters, especially if substance use is already a demonstrated issue in the case. And timing matters. If you’re posting from a bar late at night during your parenting time, someone may reasonably ask who was caring for the kids. If you’re on vacation with a new partner while the divorce isn’t final, there’s alcohol involved, and your posts don’t match where you said you’d be — that causes real problems.
Posts That Contradict What You Told the Court
These are especially damaging, because now we’re talking about credibility.
You say you can’t afford additional support, but you’re posting the new truck, the big trip, and expensive gifts for a new partner. You say your work schedule prevents having the kids on Tuesdays, but your feed shows you out partying that same night. You say an injury prevents certain activities, but there’s a photo of you paddleboarding at Chatfield Reservoir.
There may be explanations for all of it. But you’ve created issues that now have to be explained, and that erodes credibility.
Threats, Anger, and Weapons
Be extremely careful here. Aggressive language you meant as a joke looks very different printed on paper and handed to a judge who doesn’t know your sense of humor.
Photos involving firearms, hunting, or gun ranges don’t violate your rights, but they take on a different meaning alongside angry or threatening statements, or when you’re being positioned in court as an angry person. And where domestic violence, coercive control, threats, or intimidation are already issues in a case, social media can fuel the evidentiary record even when it feels completely out of context.
Missed Parenting Time
This one’s simple. Cancel your Tuesday parenting time because you say you have to work, then post a photo from a LoDo brewery at 6:30 that night, and you’ve created your own evidence. The timestamp is the witness.
“But My Account Is Private”
This is one of the biggest misconceptions in this whole area.
Private means you’ve attempted to choose your audience. It doesn’t mean your audience is loyal. Maybe it’s your ex’s sister, an old coworker, a mom from preschool, or a mutual friend you forgot was still following you. All it takes is one screenshot, and that private material is headed to your ex’s desk.
And private material can still be discoverable if it’s relevant to the litigation, which means it doesn’t matter whether your ex follows you at all.
As Krista puts it: “Private is a social media setting. It is not a legal privilege.”
Should You Delete Your Social Media During a Divorce?
Don’t start deleting things without talking to your attorney. It’s usually an overreaction, and it looks like you’re getting rid of something that shouldn’t have been there.
Once litigation has begun — and sometimes once it’s reasonably anticipated — you have a duty to preserve relevant evidence. Deleting can create a spoliation problem. The Colorado Supreme Court has addressed destruction of evidence, and when a party destroys evidence that should have been preserved, consequences can include an inference that the evidence would have been unfavorable.
Think about what you’ve accomplished. Maybe the original post wasn’t even that bad. Now you’ve created a second issue: why did you delete it?
And deleting doesn’t mean it’s gone. Someone may already have a screenshot. There may be notifications, account data, or backups. Krista points to a recent Ohio murder trial where the defendant and his mistress believed roughly 107,000 messages had been deleted. They were definitely not.
So don’t panic and wipe your history. What you can do, going forward:
- stop posting new material;
- tighten your privacy settings;
- review who can tag you;
- turn off unnecessary location features.
Get legal advice before you destroy something that won’t actually be destroyed anyway.
And Never Log Into Your Ex’s Accounts
You can probably guess the password. They may not have changed it, or you know their usual variations. The account may still be saved on the family iPad.
Don’t do it. Don’t log into a bank account that’s now separate. Don’t check their Instagram. Don’t create a fake account to monitor an ex or a new partner. These are terrible looks and genuinely problematic. If you believe important evidence exists, obtain it lawfully.
Your Children’s Digital Footprint
Posting pictures of your children isn’t inherently a custody problem, but Krista asks parents to think about three things.
First, is the post actually about your child? A photo of your child by Bear Creek, the Platte, or Cherry Creek captioned “Finally, a peaceful weekend.” A shot on your back porch in Golden or Arvada captioned “Making up for lost time.” That’s not a post about your child. It’s a message about your ex, delivered using your child’s photo. Don’t do that.
Second, check your parenting plan. Some plans contain specific provisions about social media and posting about the children. If yours does, follow it.
Third, think about safety and location. School uniforms, team jerseys, street signs, the name of a dance studio, location tagging — all of it can put your children at risk.
That leads into location-sharing technology: Life360, Find My, Snap Map, AirTags. These have perfectly legitimate uses, and parents have good reasons to know where their kids are. But there’s a difference between tracking your child for safety and using your child’s device to track the other parent. That line gets crossed a lot.
And don’t recruit your children. Don’t ask them to screenshot things, check accounts, or report on the other household. Don’t enlist their friends either. Kids should not be investigators in their parents’ case, and it’s extremely damaging to them.
Public disparagement, family group chats attacking the other parent, and pulling other people into the conflict can all become part of a larger pattern used against you.
Dating Apps and New Relationships
Can you date? Of course. Colorado is a no-fault divorce state, and having a dating profile doesn’t make you a bad parent.
But dating profiles create evidence too. A friend of your ex will see it and screenshot it. So think about what your profile says. “No kids, no baggage.” “Always ready for a spontaneous weekend.” “Looking for fun, nothing serious.” None of that reads well for a parent who takes parenting seriously — and if you’re simultaneously asking the court for substantially more parenting time, those statements invite questions.
There are legitimate reasons to keep your children off a dating profile. Protecting their privacy makes sense, and you’d face far more criticism for putting them on there. But saying you don’t have children is a different thing. Portraying yourself as a party animal is a different thing.
The bigger custody issue usually isn’t the app. It’s who you’re introducing your children to and how fast. Judges care about the people in a child’s environment. You have the right to date whomever you want, but you’re now under a court’s jurisdiction with an ex who may disagree, and courts can examine whether the people around children are fit to be there.
Krista’s own advice: if she were dating someone, she’d get a background check, because the last thing you want is to expose your children to someone dangerous. And go very slowly. A recent episode covers introducing children to new partners and the parenting plan language that sets expectations for timing.
Apart from court entirely, your children are adjusting to two homes, new schedules, and their parents’ separation. Don’t rush another major transition. And consider the ripple effect: if you post about a trip to Mexico with a new boyfriend, grandma may ask your child about it — and your child may not have known. That’s avoidable stress you created for yourself, not for them.
Social Media and Protection Orders
Colorado’s protection order laws can involve harassment, threats, stalking, domestic abuse, and coercive control, and online behavior can become part of that evidence.
Repeated messages, threatening posts, monitoring accounts, publishing your ex’s private information, or using mutual friends to deliver messages can all matter. If you’re under a protection order, understand exactly what it prohibits. A no-contact order may cover direct messages, comments, tags, and even indirect contact through third parties. Don’t assume social media somehow doesn’t count as contact. Violating a protection order can carry criminal consequences.
If you’re the protected person and someone is violating an order online, don’t get into a social media fight. Preserve the evidence: capture the date, time, and account information, save the URL where applicable, and give it to your attorney or law enforcement. Don’t bait someone into violating an order — that becomes your problem too. Document, but don’t engage.
What Child Advocates Actually Look For
In Colorado, a court may appoint a child and family investigator (CFI) or a child’s legal representative (CLR). More complex cases, or those with serious mental health issues, may involve a parental responsibilities evaluator (PRE). Krista serves in both CFI and CLR roles and finds CLR work generally more helpful to families.
For any of these professionals, social media often becomes part of what they receive and review. Sometimes they see something publicly. More often, your ex hands it over — screenshots, messages, posts, and comments, sometimes in enormous stacks.
But here’s some perspective. Nobody is hunting for one dumb Facebook post so they can declare someone a bad parent. People make mistakes. What’s much more meaningful are patterns:
- Does this parent repeatedly disparage the other parent publicly?
- Are the children exposed to it?
- Is the parent involving extended family or friends in the conflict?
- Do the posts contradict things the parent said elsewhere?
- Does the parent appear unable to keep adult conflict away from the children?
If an advocate has been appointed, assume anything public — and anything on your page — could eventually be seen. But don’t swing the other way and manufacture a perfect online version of yourself. That gets called out as insincere. Just use good judgment.
What About Free Speech?
People ask whether they have a First Amendment right to say what they want. Of course you have constitutional rights, and getting divorced doesn’t eliminate them.
Colorado appellate courts have recognized limits on a court’s ability to restrict a parent’s constitutional rights, and that’s well established. Court of Appeals decisions addressing restrictions on parental speech emphasize the need for evidence of harm and carefully tailored, least restrictive limits. A court can’t simply declare that it’s in a child’s best interest that you never say a particular thing again.
But here’s the distinction that matters. Your right to say something doesn’t mean the court has to ignore that you said it. Whether a court may prohibit speech is one question. Whether something you voluntarily said is relevant evidence in a best interest analysis is another, and judges have broad discretion to apply those factors. By being in the divorce or allocation of parental responsibilities court, you’ve invited oversight you wouldn’t otherwise have.
Colorado Is Smaller Than It Looks
For listeners across Denver, Arvada, and Golden — where Jefferson County domestic cases are heard in the first judicial district — Krista’s experience statewide is that context and patterns matter. A single bad post generally isn’t the whole custody case. The more useful questions are: Did it happen during parenting time? Did the children see it? Does it contradict something you told the court? Is it part of a pattern? Does it show you supporting your child’s relationship with the other parent, or undermining it?
And don’t count on anonymity. Krista runs into people constantly — in shops around Arvada and Denver, in Facebook groups, on Nextdoor, in Jefferson County school parent groups, at PTA and PTO pages, in team chats for groups like Apex Sports, at dance studios, scouting groups, church communities, and neighborhood pages. Even in big places like Denver, Castle Rock, Colorado Springs, and Fort Collins, it’s six degrees of separation. If you post something in a group, assume somebody there knows your ex. Somebody probably does.
The Dos and Don’ts
One clarification first: “during your case” doesn’t mean until your first decree. These cases go back to court often, and social media is sometimes what sends them back. Practically, this applies until your child ages out — 18, or 19 for child support.
Do:
- Think before you post.
- Talk to your attorney before deleting or deactivating accounts.
- Assume anything you post, like, or comment on could be seen by the judge.
- Tighten privacy settings and turn off unnecessary location tagging.
- Review who can tag you.
- Preserve concerning communications from the other parent with dates and context.
- Use court-friendly platforms like OurFamilyWizard or TalkingParents when appropriate or required.
- Ask friends and family not to post about your case or attack your co-parent online.
- Before posting, ask whether you’d be comfortable having it read aloud in court.
Don’t:
- Post about your ex, their new partner, or their family.
- Post about your judge, the attorneys, hearings, or court documents.
- Use your children’s pictures to send messages about the other parent.
- Post anything that contradicts your financial disclosures or statements to the court.
- Post when you’re angry, drinking, or using marijuana.
- Violate a protection order through social media or third parties.
- Log into your ex’s accounts.
- Use your children’s devices to monitor the other parent.
- Create fake accounts to watch your ex.
- R