Tag Archives: Evidence

Keeping Text Messages for Court

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Texting and Family Law

If you have been involved in a family law case (especially a custody dispute or a divorce where infidelity is an issue), your lawyer has probably talked to you about the importance of documenting everything.  I generally think, the more information you can gather, the better.  Yes, it will take some time for you or your lawyer to sort through stacks of details about your life looking for the relevant statements, dates, events, and documents.  Yes, it is a difficult way to live — cataloguing proof or otherwise documenting every little thing that happens that might have an impact on your case.  But when it comes to your property and especially your children, I like the “better safe than sorry” approach.

In some co-parenting situations, calm and effective communication can be difficult.  These parents often resolve to communicate primarily through email and text messages.  We all know how to keep an email as documentation of communication, but how do you keep a text message for use as potential evidence in court?  Here are a few options for documenting communication by text message:

  • Take screen shots of the messages:  search online to find out how to take a screen shot of exactly what appears on your particular type of phone; save the image and print it out to keep or show your lawyer;
  • SMS Backup+:  this is a free app for Android users that automatically backs up your text messages and phone log to your Gmail or Google calendar;
  • Email My Texts:  this is another Android app that costs $4.90 to download and allows you to email, print, and save all of your text messages, as well as export them to a number of other services, like Dropbox or Evernote;
  • iPhone users:  unfortunately, there doesn’t seem to be a reliable app to simply backup or email your iPhone texts like the Android users have; check out this article for advice on how you can keep and access the files that archive your text messages.

Unfortunately for iPhone users, it seems to be a bit more work to document text message conversations than it is for Android users.  With an important issue like custody on the line, though, it will likely be worth it.  Talk to your lawyer about what types of information and communication you should be documenting, and stay on top of it!

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Recording Your Spouse

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Secret Recording

In our digital age, tape or voice-activated recorders are cheap, easy to use, and easy to hide.  But can you hide one in your spouse’s car or office to get evidence of cheating?  No!

In North Carolina, it is illegal to record a conversation without the knowledge and consent of at least one of the parties being recorded.  So you may record your own conversation with your spouse, because you have consented to the recording.  You may not, however, record the conversation of two unsuspecting, unconsenting parties.  Hiding that voice-activated recorder in the car could be a very costly violation of wiretapping statutes, plus any evidence of an affair couldn’t be used against your spouse anyway.

In addition to evidence of cheating, you might want to record your own conversations with your spouse to provide evidence of problems that occur during custody exchanges, or evidence of domestic violence.  Just remember that only conversations in which you are involved are fair game.

One Exception:  Vicarious Consent

There is one exception to this rule, which allows you to record conversations between your children and another party.  In certain situations, you may give consent on behalf of your children, but only when you are concerned about the safety of your children.

If, for example, you suspect that your spouse is abusing your children, you may record conversations between the children and your spouse.  You must be prepared, however, to defend the recording in court by showing that you had a legitimate reasonable fear for your children’s safety.  Your word or simple suspicion will not be enough — you need evidence to back up your fear.

Bottom line:  You can only use a recording device to record a conversation to which you are a party; it is illegal to record conversations of others without their consent.  In limited circumstances, it may be permissible to record the conversations of your children with others.