Protecting Children of Divorce Against Weaponized Social Media, Part 1: Exploring the Harmful Effects

In his three-part series, Gus Dimopoulos uses recent decisions such as and ‘Kassenoff v. Kassenoff’ and
‘Walsh v. Russell’ to discuss the detrimental effects of social media on children in divorce cases and the importance the above rulings have on protecting children of divorcing parents. Part Two in this series will look at how social media companies and the courts are falling short on providing protection. Part Three will examine what’s being done about it.

Social media has become the latest weapon in divorce battlegrounds. Scorned spouses share photos, videos, or inappropriate and confidential information on social media channels, like Facebook and TikTok, to air grievances about a spouse, gain leverage in a divorce proceeding, or simply to inflict embarrassment or hurt. Inevitably, such public vitriol works its way back to litigants’ children, who either view it on their own social media feeds or learn about it from their friends or classmates. It’s especially concerning when posts include information about the divorcing couple’s children, such as their names, images, and likeness.

Those posts potentially breach a child’s trust, privacy and safety, and can cause detriment to his or her wellbeing. While litigants often cloak their use of social media in the protections of the First Amendment, free speech isn’t unlimited. It’s important to make a distinction around disparaging or hateful social media posts made during a divorce that are likely to harm vulnerable children, and, regrettably, the Legislature and court administration have failed to enact prophylactic measures to protect them. Furthermore, the New York courts have been slow and largely ineffective in responding to specific instances of such social media abuse. New York Courts have the authority, in the best interests of a vulnerable population, to prohibit harmful and offensive social media posting during the pendency of a divorce and should enact court rules that make a prohibition mandatory.

Although such governmental “prior restraints” pose freedom of speech concerns, restrictions can be narrowly tailored to avoid running afoul of the First Amendment. Understanding the obligation and proposed restrictions requires a deeper understanding of the detrimental effects of social media on children, and the particular vulnerability of those involved in a divorce. Here we explore them. Dangerous Consequences Children are no strangers to social media and they are relying on it at increasingly younger ages.

Take, for instance, Tik Tok. According to Qustodio, a leading parental control app, 25% of TikTok’s users are between 10 and 19 years of age. They spend, on average, 75 minutes per day on the app. Research shows their escalating use of social media is alarmingly detrimental, leading to increased rates of anxiety, depression and even suicide. The Centers for Disease Control and Prevention data show nearly one in four teens has seriously considered suicide in 2021, nearly double the level a decade earlier.

In December 2021, U.S. Surgeon General Vivek Murthy published a safety advisory warning of a looming youth mental health crisis and attributing rising rates of hopelessness and suicidal thoughts among teens to both Covid-19 confinement and social media. What’s more, the American Psychological Association, in May 2023, issued recommendations and health advisory on social media use in adolescents. The recommendations cited research that demonstrated children’s exposure to online discrimination and hate is a leading predictor of anxiety and depression. The CDC’s Annual Youth Risk Behavior Survey shows truly alarming statistics: 57% of teen girls now say they experience persistent sadness or hopelessness (up from 36% in 2011), and 30% of teen girls now say that they have seriously considered suicide (up from 19% in 2011).

Particularly Susceptible

Coupled with these alarming trends concerning social media and children is research known for decades—parental divorce is associated with an increased risk for a child to have mood behaviors, conduct disorders, and depression, according to the World Psychiatric Association.

Findings from a 30-year study show children of divorce have not only reported a link between divorce and depression, but also on reduced educational attainment, early assumption of high-risk behaviors, such as early sexual activity, nonmarital childbirth, and earlier marriage and cohabitation, as well as an increased risk for suicide attempts.

This data shows that children of divorced parents are already at risk for the harmful behaviors and feelings attributed to the use of social media, escalating their vulnerability and potential for harm.

Parental Monitoring Not Foolproof

Despite the impassioned social media posts that put their children at risk, most parents wish their children no harm from them. Many will attest to protecting their children by monitoring their social media feeds or prohibiting social media use, but it’s naïve to believe that children are safe from the harms of social media.

As anyone with teenagers can attest, it’s difficult to monitor all content on a child’s phone and some parents believe that children of a certain age are entitled to privacy on their devices. Additionally, even if a child does not have a TikTok or Facebook account, his or her best friend does and that friend can—and likely will—show the child a post his or her parents shared.

Fortunately, many states have begun to enact tough legislation to protect children, indicating a shift in perception of how politicians perceive social media and the companies that foster it.Utah, for instance, became the first state to enact laws limiting how children can use social media.

The new laws require age verification and parental consent and will force social media companies to resign their “algorithm” to stop promoting certain ads and content to children. Other states, including Arkansas, Texas, Ohio, Louisiana and New Jersey are said to have similar legislation in the works.

Will it be enough to protect innocent children from their parents’ rants on social media? Part Two in this series looks at how social media companies and the courts are falling short on providing protection. Part Three examines what’s being done about it, and what needs to happen to mend the harmful gaps it leaves.

Gus Dimopoulos is managing partner at Dimopoulos and Bruggemann