In today’s society, texting is a form of communication used by millions of people everyday. Unfortunately, if you are involved in a child custody case, it is possible for a text message to come back and be used against you, even if the message is taken out of context.

Can Text Message Be Used in Court for Child Custody Cases?

In recent years, text messages used in celebrity divorces have made headlines in the United States. 

Texting can get you into trouble, even if it does not involve anything as severe as an affair. For example, text messages may be used to show that one parent is harassing the other.

Perhaps you are involved in a custody battle for your children, and you send a text to your ex-spouse about a contentious issue. If so, it may be used in court as evidence to show you have a problem controlling your anger and frustration. 

By itself, a text message may not be a strong piece of evidence. But if used along with other compelling evidence, it carries more weight.  Remember, your ex-spouse and their attorney is looking for any bit of evidence they can use to portray you in a negative manner. 

When it is taken out of context, it is really easy for a text message to be interpreted differently than you intended, when taken out of context. So be extremely careful in the wording of any text message you send to your ex-spouse, family, friends, and coworkers.

Some legal experts have argued in court that the use of text messages is an invasion of privacy. But if the court sees these messages as relevant to your case, they will most likely be allowed to admit them as evidence. 

Additionally, if your phone is part of a family plan, then your spouse or ex-spouse has every right to review your text messages. However, due to text message laws, it may be illegal to try to get texts off a phone that does not belong to you.

In order for text messages to be admissible in a court of law, you must be able to prove who wrote and sent the text. Authenticating text messages can be hard.

Can Text Messages Be Subpoenaed for Court? 

When you have figured out which text messages you want to use in court, you and your family law attorney will need to document and print them out. The text messages to be used for evidence should include the time, date, and contact information for the other person in the text message conversation. 

The use of text messages is still a grey legal area, and the laws vary from state to state. However, it is important that you talk to your attorney, in order to figure out if you can use the text messages (or if they need to be subpoenaed for use in court). 

If you are the recipient of the text messages, you can print out the entire text thread to submit as evidence. But some of the text messages may have been deleted or sent to someone else.  In those cases, your attorney may have to subpoena them. 

When Do Judges Allow Text Messages in Court?

In most states, judges have a lot of discretion, and some are very hesitant about allowing texts. Yet other judges may view them as useful pieces of evidence that show the parents’ intentions, behavior, and character.

A judge will almost never allow text messages or any other communications if they were not obtained in a legal manner. As an example, if you unethically gained access to your ex’s cell records or asked your child to get the text messages for you while on a visitation, they will not be allowed to be used as evidence. Furthermore, your attempt to gain access to those text messages can be used against you.

Furthermore, in order for text messages to be used in court as evidence, you must be able to prove:

1. That the writer of the text message was your child’s other parent. 

2. That the texts were obtained in a legal manner. 

Can My Texts Be Used Against Me?

As we have already stated, yes, a text can be used against you in court. If you send a text out of anger, frustration, or hurt, the person you sent them to can use them as evidence of your ‘bad character.’

Can I Use Emails and Social Media In Court?

Most of the same guidelines that apply to text messages also apply to emails. If you obtained them in a legal manner, there is a chance the judge will allow them to be submitted as evidence.

It is important to note that even if you delete a conversation or block someone, they could still have their copies of the messages you send.  Most importantly, do not ever assume that any social media post you make is private, or only a few people can see it. If even one person can see your posts, they can share it with other people. 

If you have sent a text that you now regret, let your attorney know as soon as possible. Then they can advise you about how to handle it, and work to keep that text out of your child custody case. 

What Kind of Witness Testimony Can I Use In Court?

There are a few kinds of witnesses that can testify in a court of law.  They include:

1. Lay Witnesses, which may include people such as your child’s teacher, a neighbor, and your spouse.   Except in certain specific circumstances, it is not advisable to have your children testify. 

2. Expert Witnesses: You may want to also use expert witnesses for your divorce, such as a property appraiser, business evaluator, child psychologist, and forensic accountant. 

What Other Evidence Can I Use For My Child Custody Case?

You can use school records, guardian ad litem reports, proposed parenting time, and child custody schedules to advise the court that  your plan is in the best interest of your child. 

You can also use emails, letters, and text messages to prove spousal misconduct or parental alienation. 

In addition, you can use documentary evidence, such as photographs, witness affidavits, expert testimony reports, and physical evidence. 

Conclusion

It is important to note that people are texting more and talking to each other less. In the United States, the average adult spends about 23 hours a week texting. 

As with the internet, social media, and emails, anything you write, post, or send is stored on a database and can be accessed anytime—even if you delete the messages. Therefore, it is especially important for  you not to say anything that is incriminating or potentially harmful to your child custody case.  It can and will be used against you.