Understanding the Admissibility Of Texts In The Family Court System

Can Texts Be Admissible In Court?

Admissibility of text messages in family court is governed by the rules of evidence. Generally speaking, text messages are considered written documents and are admissible in court provided there is a proper showing as to their authenticity. Much of the law applicable to text messages is derived from general laws applicable to electronic records and electronic signatures which is codified in 15 U.S.C. § 7001 et seq. and accompanied by regulations in 31 C.F.R. § 501 et seq. Neither statute nor regulation addresses admissibility specifically. Nevertheless, "The general rule is that if the contents of a writing are raised in issue, that writing is admissible as long as the proper production and authentication foundation is laid." State v. Dingman, 283 Neb. 774, 775, 814 N.W.2d 984, 986-87 (2012), citing State v. Smith, 274 Neb. 285, 740 N . W.2d 733 (2007). See also State v. Olshan, 292 Neb. 849, 872 N.W.2d 689 (2015); VRT, Inc. v. Gibbons, 274 Neb. 646, 741 N.W.2d 407 (2007). Authentication can be accomplished through evidence demonstrating the authenticity of the content of the writing itself. Nebraska Evidence § 901.05. The district court’s consideration of admissibility of text messages in Olshan was appellate as that case was originally tried in county court. In Olshan, the defendant asserted the authenticity of a text message thread through the use of the witness who sent and received the text messages. In that case, the appellate court noted that the messages were "not considered ‘electronic records’ within the meaning of the Federal E-Sign Act." Id. at 861, citing 15 U.S.C. § 706. Thus, the analysis under the E-Sign Act was inapplicable to Olshan.

How Do You Prove A Text Is Real?

Establishing the authenticity of text messages to be admitted in Family Court is usually a fairly simple process. The burden rests on the party seeking to introduce the text messages to establish their authenticity by a preponderance of the evidence. Generally, that burden is satisfied by providing screenshots of the subject text message along with testimony from the party or other witness regarding the content within the screenshot. The testimony should include specific details such as when and where the text messages were received and whether the device upon which they are saved belongs to the party or other witness. The witness should be prepared to testify as to the make and model of the device in question. The authentication requirement is generally met by "proof of the process or system which produced it, or of the control of the process or system which produced it . . ." People v. McGee, 98 N.Y.2d 156 (2002). Additionally, "once a witness with personal knowledge authenticates an electronic document he or she prepared, signed, or received, that document may be admitted into evidence even if it is not kept in the usual course of business." People v. Patterson, 93 N.Y.2d 80 (1999). Text messages, similar to photographs, do not constitute hearsay, since they are admissible as a present sense impression or exception to the hearsay rule.

Key Legal Challenges

Generally, the use of text messaging in and of itself by the parties is usually not a problem. The risks and challenges come with the admissibility of these records; there are several problems that can arise: first, you have to properly authenticate the documents. Second, the opposing party may have privacy objections (i.e. "my wife hacked into my phone"). Third, the opposing party may object on hearsay grounds (i.e. it’s just a text message…where’s the proof that my wife wrote that?). Fourth, the authenticity of the document can be attacked if the party does not understand how to explain the authenticity of the documents or if their testimony is not trustworthy.
For example, if the wife in the example above is asked about how she got the text messages, she says that she had her friend hack into her husband’s h phone and copy the text messages onto her iPhone. However, the way the text messages are actually printed onto the wife’s iPhone do not make sense. Since the wife’s iPhone did not have the capability to receive the text messages from her husband’s iPhone, it would not be possible for the friend to physically put them onto the wife’s iPhone in the way she described. In this example, both the husband and his friend could testify as to how the friend hacked into the husband’s text messages and printed them onto his wife’s iPhone. Under those circumstances, the wife’s testimony can be discounted and the judge can determine that the document is not admissible at all because it is not credible. This is a very simplistic example, but this is an issue that comes up quite frequently and is something the attorneys and/or judge will have to assess and determine whether the documents are credible enough to be presented to the Court and if so, how they should be authenticated.

Case Examples – Texts Are the Key

There are a number of family court cases wherein text messages evidence may be critical. First, most of the types of custody issues may be susceptible to text message evidence. A common scenario in that regard is where an alleged adverse impact on a child by a custodial parent results from that custodial parent’s cell phone addiction. Second, domestic violence cases may include situations where the protective order sought or granted does not address the situation in a manner or to the extent contemplated by the requesting party . For example, the texting assaultive conduct is often over and seems to be missed by courts. Moreover, the subject rejection of alleged abusive conduct by courts is often premised upon the misunderstanding or misapplication of statutory requirements for relief therein. Third, family law matters involving disputes over financial matters may also benefit from the use of text messages in confirming that the parties had an agreement or that one party intended to be bound to an agreement or portion thereof.

How To Present Texts In Court

Parties should take care to follow established guidelines and best practices when presenting text messages to the Court. Simply printing off the text message transcript or presenting a hand written copy is ineffective and often not admissible. There are several standards the Court considers prior to deeming a transcript admissible. These requirements include, but are not limited to the following: The Court may be more receptive of your text messages, especially if you comply with the above standards. But if you still struggle with the admissibility of such an exhibit, consider hiring a third-party company with specialty experience in the creation of text message exhibits.

The Implications in Real Life – And Results

The prevalence of cellphone text messages as evidence in family court is likely to continue to increase, and the law surrounding text message evidence will continue to evolve. Recent cases have resulted in significant change to how text messages are handled within family courts and how these messages are weighed by judges and juries in making custody and spousal support determinations.
The outcome of a case can be swayed due to the content of text messages provided as evidence, as seen in one recent case involving evidence from 295 text messages. In that matter, it was reported that although his children had "rejected any system of rules or consequences," a New Jersey judge refused to order a change in custody after the father used text messages on his children’s smartphones to convey to them messages such as "Home again in 10 days Candi," and "Can’t wait to see you. J." The judge expressed concern as to the "utterly clueless" nature of the phone plan and the risk the children may face if they had continued access to the text messaging "service." In that instance, the judge decided to step in and modify the order to prevent the children from communicating with their father. (Note: removal of a child from the parent’s home is a suspension of parental rights, which cannot be done without an order from the court.)
In another, New Jersey case a family court judge imposed a period of incarceration for contempt of court on a father who used text messages to ask his pre-teen son how to make "explosives" and "bombs," as well as carrying out killings. Even though the father said he was joking and did not mean what he wrote, the court held this was well beyond acceptable joking between a parent and child. The court stated that while the father did not commit an act of terrorism, he did interfere with his child’s development, and as such, did not have custody of his child and was prohibited from contacting him. The father appealed the order modifying custody . He also had a hearing scheduled because he alleged that his ex-wife was violating the parenting schedule. The ex-wife was held in contempt of court. She appealed the order finding her in contempt of court.
In a Georgia case, the father filed a motion for contempt against the mother, citing one text message in which the mother asked the interpreter to obtain additional money for their son’s club swim fees, alleging that the father was late. The trial court found some evidence of willful contempt but found that the alleged violation was de minimus in light of the other things the mother had done to comply with the father’s discovery requests. Accordingly, the trial court released the mother from the contempt order, and the father appealed. The Court of Appeals upheld the decision and found that the mother was not in willful contempt, absent authorization for the interpreters’ parents to receive payment from the father directly. Further, the Court of Appeals held that it was not an abuse of discretion for the trial court to find the mother’s conduct a willful violation of the original order and lift the contempt order. Factually, the father had to reimburse the mother for the costs she incurred to pay the interpreters, or the interpreters could sue the father individually for non-payment. Moreover, the trial court also ordered the father to submit all non-custodial parent shift bids, for job purposes, to the trial court in a timely fashion. On appeal, the Court of Appeals held that it was not an abuse of discretion to find the father in willful contempt.
The above cases illustrate that, when presented in the right circumstances with authenticating evidence, indisputably relevant and material text messages may be considered admissible in court in order to make determinations relevant to custody, parenting time and spousal support. The above cases also illustrate that text messages relevant to one parent’s compliance with previous orders (such as parenting time) may be considered inadmissible on that basis and inadmissible unless it has been authenticated.