Ask Attorney Jennifer B.: Email Evidence and Texting Trouble, How Written Communications Impact Custody Disputes

As family law practitioners, we see it all the time, written communications between parties that make us cringe. Clients rarely stop to think that what they write, whether in a text, email, or even a quick note sent in frustration, may one day be read in a courtroom. What people put in writing can and does come back to haunt them. It is surprising how often individuals will commit their worst thoughts to writing, whether in anger, as a way to lash out and seek revenge, or even as an unguarded, unedited admission of their own behavior.

Written communications matter because they provide context into a person’s conduct over time. This is especially true in custody matters. Text messages and emails often reveal patterns of behavior. They show how parties communicate, how they handle conflict, and whether they can effectively coparent. Unlike testimony prepared for court, the communications between parties prior to ever going to trial are unfiltered and real. They reflect honest tone, candid reactions, and sometimes very deep problems. It is not uncommon to see messages that include admissions about substance use and abuse, infidelity, or other conduct that becomes directly relevant in litigation. Even statements that seem minor in the moment can take on greater significance when viewed as part of an ongoing custody dispute.

What is equally unbelievable  is how casually people treat these communications. Phones are shared, accounts are linked (with text messages oftentimes showing up on a child’s iPad), and written communications are easily accessible. Yet people continue to send impulsive or inappropriate written messages, assuming they will remain private when they often do not. Screenshots are taken. Messages are saved. Entire threads can be produced in discovery and reviewed line by line. Once something is written, it is difficult, if not impossible, to take it back or pretend it does not exist.

Courts pay close attention to these communications.  And while a single message is not usually the smoking gun, patterns of behavior are often discerned through these written communications. For example, a Court may surmise from these communications that one party consistently escalates conflict. Or perhaps a party is undermining the other parent’s authority with the children. A Court will also determine if the parties are able to communicate in a way that supports coparenting or do they need help in this area. In many cases, these written exchanges become the focus of the Court’s inquiry and some of the most persuasive evidence put before the Court.

As such, it is critical to counsel clients to be thoughtful and disciplined in how they communicate. Venting in writing to the other party is almost never helpful and often makes matters much worse. A better approach is to pause before responding, consider the purpose of the communication, and keep it focused, neutral, and factual. Clients should be encouraged to ask themselves if they would be comfortable having their message read aloud in Court before hitting send.  If the answer is no, it is best not to send the message.

In high conflict custody cases, tools that allow for structured communication such as parenting apps can be particularly useful. These platforms keep all exchanges in one place and create a level of accountability. When parties know their communications may be reviewed, they are often more careful in what they write. Some apps even provide feedback on language, flagging tone, helping users avoid unnecessarily harsh or inflammatory messages. While not a cure for conflict, these apps can be an effective way to bring some structure and consistency to difficult interactions and dial down the rhetoric between parties.

At the end of the day, communication can shape the course of a custody case. More importantly, it can shape the coparenting relationship moving forward. Respectful, controlled communication does more than protect a client’s position in Court. It can reduce conflict, lower stress, and ultimately benefit the children, who are often most affected by ongoing tension.

And thinking before writing is not just important for litigants. All of us can benefit by taking a moment to think about what we are saying before hitting send.

With more than 25 years of experience in the industry, Jennifer Brandt’s practice includes all aspects of family law including divorce, custody, support, alimony, adoption, and guardianship matters in both Pennsylvania and New Jersey. In addition to family law litigation, she also negotiates prenuptial, post-nuptial and cohabitation agreements on behalf of clients. In addition to her busy practice, she’s a well-known legal commentator on national news networks including CNN, CNN Headline News, Fox News Channel, MSNBC, ABC News, Court TV and local and regional television and radio.

If you have a family law issue or would like her to speak about legal issues, you can connect with Ms. Brandt at www.cozen.com.