Social media minefield: protecting kids in family law

According to the U.S. Surgeon General, up to 95% of young people ages 13-17 use a social media platform, nearly two-thirds use it daily, and one-third report using social media "almost constantly." It is no secret that this prevalence of social media engagement among minors introduces a host of risks, ranging from cyberbullying and misinformation to potential encounters with online predators. As social media platforms have become ubiquitous, the regulation of minors' online activities presents a complex challenge.

In the past, minors' rights to use social media have generally been protected under the First Amendment. On Feb. 13, 2024, for example, a federal judge cited the First Amendment when he issued an injunction preventing Ohio from enacting a new law mandating social media companies to secure parental consent before permitting children under 16 to access their platforms (AP News). However, this First Amendment protection is not without limitation due to the dangerous nature of social media platforms and the risks they pose to a minor's well-being.

In 2022, California signed into law the AADC (Age Appropriate Design Code Act). The AADC mandates businesses to adhere to fifteen standards, including conducting data protection impact assessments for new online services aimed at children. Additionally, the law requires businesses to estimate child users' ages, configure default privacy settings for high privacy, provide age-appropriate privacy information, and refrain from using a child's personal data in ways detrimental to their well-being, with an effective date of July 1, 2024. This legislation is partially responsible for a series of cases heard across the country in 2023 regarding restrictions that can reasonably and legally be set on minors' use of social media. While these discussions have focused on minors without regard to their individual situations, minors in the context of family law disputes might qualify as a group we should observe with special consideration.

Particularly, in dissolution cases, as children shuttle between parental residences, seeking solace and connection online amid familial upheaval, they inadvertently expose themselves to the perils of the digital world. In one particularly alarming case in which I represented a minor child, a 15-year-old girl "Claire," emboldened by the anonymity afforded by social media, engaged in reckless behavior. Claire used her social media accounts to pose as an adult and solicit inappropriate interactions with strangers, placing herself in grave danger. Seeking affection, she scheduled to meet in person with these strangers who were mostly older men. Unfortunately, situations like this one are far from rare. Minors who are caught in the middle of contentious custody battles often interact with strangers on the internet, posing a physical, mental, and emotional danger to them. As is more often the case because of the normalcy of catfishing today, the interaction does not even have to be initiated by the minor themself. And when parents are embroiled in their own battles, what is happening at home can often be overlooked.

Despite the dangers that can come from minors' use of social media, the law remains largely silent on the issue of regulation within the context of divorce and custody disputes. It treats this matter as a mere parenting concern, akin to other decisions such as bedtime routines, overlooking the inherent complexities and dangers associated with unrestricted online access for minors. In instances where parents themselves do recognize the importance of social media regulation, they often grapple with disparate household rules and parenting styles, exacerbated by the involvement of stepparents with their own set of regulations. Consequently, discussions regarding social media usage frequently fall by the wayside amidst the broader negotiations of custody arrangements and parental responsibilities.

When disagreements arise between parents regarding social media regulation, the legal system adopts a hands-off approach, relegating the issue to parental discretion or, at best, mediation or a Parent Coordinator. However, this laissez-faire approach fails to address the urgency of safeguarding minors against online threats.

Having practiced family law for over two decades, I have encountered numerous instances where social media regulation teetered on the brink between a parental prerogative and a genuine legal concern. In Claire's case, the court did ultimately intervene to modify custody arrangements in response to her imminent danger. Such reactive measures underscore the inadequacy of the existing legal framework in addressing the complexities of social media regulation.

Social media regulation transcends mere parental discretion and warrants a more robust legal framework. I do not have the perfect solution, but I think it is worth it for the Court to discuss and decide on a path forward that reevaluates existing statutes - and, if necessary, rewrites them to encompass oversight of minors' online activities. For example, modernizing the definition of legal custody as outlined in the Joint Legal Custody Agreement FL-341(E) to explicitly incorporate provisions for monitoring and regulating social media usage might be a good place to start.

Regardless of whether the Court decides to take more action, family law attorneys can play a big role in normalizing this topic. Family law attorneys can proactively integrate discussions surrounding social media regulation into divorce negotiations, elucidating the legal ramifications of parental rights and responsibilities vis-à-vis their children's digital footprint. By addressing issues such as cyberbullying, parental control over digital devices, and the dissemination of misinformation, attorneys can empower parents to navigate the complexities of social media regulation within the context of divorce proceedings, fostering a more informed and vigilant approach to protecting minors in the digital age.

In conclusion, the proliferation of social media among minors underscores the urgent need for a comprehensive legal framework to regulate their online activities, particularly within the context of divorce and custody disputes. By bridging the gap between parental autonomy and judicial oversight, the court can fulfill its duty to safeguard the welfare of minors in an increasingly digitized world. Concurrently, legal practitioners play a pivotal role in advocating for proactive measures to address the complexities of social media regulation, ensuring that children are shielded from the inherent risks of online engagement amidst familial upheaval. Only through concerted efforts and forward-thinking initiatives can we effectively navigate the intersection of family law and digital technology, safeguarding the well-being of the most vulnerable members of our society--the children.

Eva M. Martelle is a partner at Allan & Martelle, LLP.