Texting is one of the most popular methods of communication in our technology-driven society. Text messages can be quicker and easier than a phone call and are much easier to respond to than an email.
It is certainly convenient and helps keep pace with the breakneck speed of technology and life today. However, anyone going through a divorce would be wise to watch anything and everything they say, text, write or send, especially when custody is at issue.
The general rule I advise all my clients to follow is never text, email or send anything that you wouldn’t want a Judge to see. If the date of the text can be shown and the parties who sent or received it can be shown, the text can be admissible as evidence.
At the end of the day most electronic forms of communication are stored somewhere, even if deleted. Once you hit the send button, there is a chance that it will be available or at least retrievable forever.
What Kinds of Digital Messages Can Be Used as Evidence in Child Custody Cases?
Electronic communications are one of the most popular forms of communication used today. This can include text messages, messenger apps, emails, or other electronic communications.
These easily recorded conversations can be helpful or harmful during litigation, depending on which side you are on. It is important to understand though that in some cases, text messages will not always be admissible in court.
There are evidentiary issues regarding relevance, hearsay, and other objections that may keep the messages from being entered into evidence.
In circumstances where it is appropriate and you want to introduce a text message as evidence in your matter, you still need to make sure you have identified the parties and nail down the date and time.
The most common questions tend to relate to who sent the text and what date the text was sent. A screenshot of a text that does not have a date anywhere on it can be objected to by the other parent and prevented from being entered into the record.
When Are Saved Messages Not Admissible in Custody Cases?
On the other end, if you have a screenshot that does not specify who sent the message, that can also prevent the text messages from being introduced in your case.
As cellular and other technology progress so does the potential of having what you say in text messages or other media come back to haunt you during your divorce proceedings.
Any custody case is already going to be an emotional and stressful situation for most parties, but it can be made much more stressful or traumatic with one simple message.
Why is it Important to Wait Before Hitting Send in Most Cases?
A lot of people will draft a text to the other parent in the heat of the moment, while they are mad or haven’t had a chance to think about their actions and how it can affect them. Soon they have drafted a novel of hateful statements or threats and off goes the text messages, which will be available FOREVER.
What they fail to realize is that what they write can become damaging evidence and undermine their own credibility in a divorce case.
Of course, the introduction of text messages still needs to be relevant to the matter at hand to be introduced in a child custody matter.
When are These Messages Worth Presenting as Evidence During Custody Issues?
Everything will revolve around what the court deems the “best interests of the children.” That can be a pretty wide net when it comes to relevancy.
Clearly, anything to do with communications with the children or parties could be relevant. Any messages related to substance abuse or domestic abuse would also be relevant to the proceedings.
However, text messages about how terrible Great Aunt Martha’s turkey dressing was at Thanksgiving is probably not going to be relevant to the proceedings.
While the court will be lenient in deciding if the text messages are relevant in deciding a child custody situation, it still needs to be related to the matter at hand or be related to the credibility of a witness to be introduced in the proceedings.
How Can the Messages Be Introduced as Evidence in a Family Law Case?
It is also important to remember that to be able to introduce the text messages as exhibits, you will need to print them out, preferably in a PDF format.
I have witnessed people representing themselves in court try to show the judge their phone in court or try to introduce a picture of text messages, only to be disappointed when the Judge wouldn’t consider it.
Does it Matter Where the Text Messages from the Other Party Originated?
Although text messages can prove to be effective exhibits in domestic cases, how the messages are obtained can matter too.
For example, if you’ve stolen a password from your soon-to-be ex iCloud to access them, they can be ruled inadmissible. Generally, if it wasn’t sent to you directly, the evidence will need to be introduced through the person it was either sent to or the person that it came from.
This can be problematic when you are trying to introduce a text message as evidence to a hostile witness and the only way to prove it is their phone is through their testimony. Further, other issues can arise depending on who owns the phone.
Some phone plans may have multiple individuals on the plan, yet all the parties live separately. Similarly, if a message is on a phone that is considered a company phone, they could be considered corporate property.
How Can an Attorney Help in a Family Law Matter?
For these reasons, it’s usually best to let a divorce attorney subpoena a spouse’s texts to try and submit as evidence in court.
Text messaging has become a part of our daily lives and an important tool in communication. It is unlikely that our texting habits will change anytime soon.
Consequently, it is important to be aware that what you say in a text can affect the outcome of your divorce. The most appropriate advice for anyone going through a divorce may be this: Don’t write, text, draw, say anything you wouldn’t want a judge to see!