By Michael DiFalco
Partner
In a contentious divorce or child custody case, one or both parties may use text messages from the other to establish unfit parenting or to support allegations of abuse or harassment. But are the text exchanges between two private individuals allowed to be used as evidence in New York family courts?
Today, we’re taking a closer look at one of the most common questions our clients have of our family law attorneys.
Text messages are usually the most common form of communication between two separated or divorcing parties, so they are often one of the primary sources of evidence for any conversations or disputes between the parties.
The New York Court of Appeals Decision on Using Text Messages In Court
In People v Rodriguez, a recent 2018 New York Court of Appeals case, a judge determined that the use of text messages as evidence is permitted if the messages can be authenticated. In other words, the sender, recipient, or both must be able to verify their legitimacy.
The above case differed from a custody dispute in that it was a criminal matter pertaining to sexual messages sent to a child. However, it nonetheless helped bolster the precedent of permitting text messages as evidence in court.
How Text Messages Can Affect Your Divorce Case
Even if a text is deleted, tech experts can almost always recover it. Also, the other party has a copy and cloud-based backups may mean that there are other copies of the text message available.
Text messages can be used to show harassment or verbal/emotional abuse, which can be extremely helpful in protecting parties who are initiating a divorce proceeding.
Can text messages be used for my New York child custody case?
Text messages are most impactful in custody cases. One parent may allege that the other needs anger management treatment or poses a danger to the children and the other parent. A text message that seems threatening or hostile can support those claims.
Text messages can also show the failure to communicate, the inability to show respect for the other parent, or otherwise confirm parenting and scheduling disputes between two parents as their relationship breaks down or during the divorce or separation.
Or perhaps one parent consistently violates the terms of the custody arrangement. They might often be late to pick up or drop off the kids or often ask to cancel their parenting time at the last minute.
Text messages stating that one parent will be late or needs to cut parenting time short can be used in court. They might help support the other parent’s request for a greater share of the physical custody time.
Text messages denigrating the other parent can be important evidence in a custody trial which can effectively undermine the other parent’s testimony about co-parenting.
Using Text Messages the Right Way
Text messages, like any other piece of evidence, must be presented following New York’s rules of evidence. You can’t simply hand your phone to the judge and ask for your motion to be granted.
In addition, which text messages you have and how you obtained them can also affect whether they’re admissible. For example, if you went through your spouse’s phone and took photos of texts they sent — or forwarded messages to your phone — they may not be admissible. Some judges consider these actions an invasion of privacy.
You’ll also have to authenticate them, such as by getting a certification from your wireless carrier that shows which numbers the texts came from or by testifying in court that the messages came from your ex-spouse and were on your phone.
Preserving all of your text messages is important, so deleting text messages, or editing them using new software could be imprudent.
Do you need help with a pending New York family law case?
A skilled family law attorney, like those at Aiello & DiFalco in Garden City, NY, can help you properly backup, screenshot, or log your text messages as evidence in your family law matter. Experienced divorce and custody lawyers will help ensure that your text messages are properly introduced as evidence in your case.
About the Author
I am a partner at Aiello & DiFalco LLP, and my priority for my clients is to guide them through an arduous court case to provide them with the opportunity to write the next chapter in their life. I tailor my approach to each client’s priorities and positions, and to the extent that matters can be predicted, I will always provide a realistic perspective of how the law could be applied to the particular facts and circ*mstances of a case. Since I thrive on helping people and solving problems, I bring an optimistic and positive approach to practicing in a very difficult area of law. With more than a decade of experience handling hundreds of cases, I have the ability to get results on the issues my clients view as priorities. When cases or certain issues cannot be settled, I have a solid record of success at trials, hearings, and on appeals. Feel free to contact me for a free initial consultation, I am always available to help.
