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How to Introduce Texts and Emails to a California Judge in Divorce, Contested Custody and Domestic Violence Cases—and Minimize Conflict Between the Parties

In my California family-law practice, helping clients deal with contested custody cases and domestic-violence issues is common-place.  On the other hand, helping my clients manage and keep conflict to a minimum is a completely different story. In high-conflict cases, such as domestic-violence cases or contested custody cases, the underlying components that prevent the parties from effectively communicating with one another are anger, animosity and sometimes, dare it say it, hate.  As attorneys, we are limited as to what we can do to minimize the conflict and combustion that takes place between the parties behind the scenes of their court case.  For example, in high-conflict custody cases, it’s common, if not typical, for parents to text each other throughout the day, almost to the point of harassment, interweaving nasty accusations and abusive statements in connection with a simple gesture such as mom picking up Little Jimmy at daycare; or, a restrained party violating CLETS restraining orders and continuing to text the protected person.    Sound familiar?

The Court’s Limitations

The problem with our California justice system is that while just about any person can obtain a court order, the law is limited as to forcing a party to comply with the court order or behaving themselves.  For instance, a judge can’t force parties to behave themselves and act in accordance with the law of the land or the Laws of God—acting with respect, integrity, kindness, grace and love.  The only recourse people have in such cases is to return to court to bring the harassing behavior, or acts in violation of a court order, to the court’s attention—in hopes of procuring additional orders.  To exacerbate matters, by this point in the litigation process, the parties are frustrated, even more angry with each other and, to make matters even worse,  without additional funds to hire an attorney to return back to court on a motion to modify custody/visitation or contempt charges.

Problems with Texting and Emailing Each Other

After court orders are issued, and the ability for the parties to communicate by phone has become impossible, most parties are relegated to solely communicating to texting each other—and in some cases, by email.  The problem with such communications should the parties need to return to court, is attempting to introduce the emails and texts into evidence.  Technically, such documents are inadmissible under what is known as the Hearsay Exclusionary Rule.  Simply put, under this rule, “hearsay” is considered “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”  So, in its simplest terms, texts and emails are considered “statements” made outside of Court  As a result, such documents are considered “hearsay” under the hearsay exclusionary rule and, thus not admissible in court. Unless there is a hearsay exception to the hearsay exclusionary rule, such documents will not be admitted into evidence if the other side objects to their admissibility.

You may say, “Well, that’s not fair.  How then can I prove that Father said . . . . in a text or email?”  Well, let’s think about it. First, with a text, most texts are run-on statements that in many cases go back months and months—if not longer. So, if a person tries to introduce only a few texts, it’s highly possible that the text can be taken out of context to the whole conversation.  As to emails, the recipient can easily edit the email by using the “Edit” feature in Outlook.  In fact, at a recent trial, this is exactly what happened. The wife tried to introduce an email that she claims her husband sent her in order to make him look bad to the court. Luckily, we had our copy of the original email. When we compared the two, we noticed that the wife’s version had been altered– by the wife.—A Miraculous Solution

So, what is a party to do if they can no longer talk to each other and the only way of communicating is in writing?  How about trying Talking  A prospective client told me about this site. Intrigued, I looked it up and was very happy with what I read.   Based on  my research, I feel the software for this website is exactly what many parties need if communicating between the parties has been reduced to a level of emotional distress,  anxiety and sheer chaos.

Talking is a website that utilizes proprietary software designed to help parties who can no longer communicate by phone, but for reasons relating to their case, need to continue communicating with one another.  By using Talking Parents, the need for giving each other’s phone number or email is no longer necessary because all communications are done through the website.

Using the site is free.  The only reason I am recommending this to my readers because I believe it’s my job, as a California family-law attorney, to educate the public.  My only interest in advocating the benefits of this site is that it may help you in your highly-charged family-law matter.  In other words, I have no hidden agenda in recommending this site.

Situations in Family Law Where Can Help

As the site reflects, Talking Parents is able to help in the following situations:

  1. Child Custody: both parties communicate exclusively through this site for all non- emergency matters. The reasons are endless—pickup, drop-offs, changes in visitation, communications regarding homework, weekend events, and so on.
  2. Domestic Violence: using this site to communicate, especially where children are involved. No more texts or emails.
  3. Divorce: Especially when the parties want to document their agreements. While the agreement will not, itself be enforceable until there is a court order, it’s a first step to proving what was agreed to between the parties.  In other words, it creates a paper trail.

Communications Can Be Certified and Satisfy the “Business Records” Hearsay Exception Rule

As I stated above, emails and texts are inadmissible under the hearsay exclusionary rule.   For a nominal fee, Talking Parents will certify their records so that they can be admitted into evidence under what is known as the California “business records” hearsay exception rule.

From my perspective, there are many benefits to a party using this site if they are involved in a contested California family-law issue:

  1.  Keeps communications to a minimum, and as a result, reduces conflict.
  2. In restraining order cases, where children are involved, the need for the protected person to communicate with the restraining person via his/her email or phone number is eliminated.
  3. All communications are secure.
  4. Communications can be admitted into evidence under the “business records” exception.
  5. Encourages parents to conduct themselves politely because they know their communications may be presented to a judge and used against them in court.
  6. It’s easy to use.
  7. It’s free.

If you wish to discuss how to include this service as part of your next court order, feel free to contact my office. So long as your case is in California, I am available to assist you with your matter.

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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