Reasonable Doubt: Creating good evidence for family law cases in the midst of computer rage
In the last Reasonable Doubt column, Joseph Fearon wrote about cellphones being the great equalizer between citizens and the police. You have rights to protect evidence you create from seizure by the police, which brings me to my topic this week: the creation of evidence.
In 2012, we apparently created 2.8 zettabytes of data. This is expected to double by 2015. I don’t even know what that means.
What I do know is that more than ever people are communicating like fiends, by text message, Facebook, Twitter, email, and phone. We’re addicted to our devices—especially the handheld variety—and this provides a treasure trove of evidence for legal cases, especially family law cases.
“You want proof that I contacted you every week for two years to ensure that you would drop my daughter off at my home for our weekly visit? Sure. I can get that for you: dates, times, and content of messages. I’ve never deleted a message I sent you or you sent me and now I will produce them to the court when you try to tell them I’ve been a deadbeat dad.”
“You want proof that you’re an emotionally abusive jerk that has terrorized me for months? I’ve got it. I’ll just produce the prolific Facebook messages you’ve sent me over the past few months in a rage that will make the judge’s hair stand on its end.”
“You need proof that I spend quality time with my son? Which of my 1,500 photos would you like to see? They’re all date and time stamped.”
As a lawyer, the sheer volume of evidence that is available to use in the average person’s court battle is overwhelming. Also overwhelming is our client’s addiction to communicating by text or Facebook with their ex in highly contentious emotional legal battles. A good friend and colleague of mine developed a policy in which she bans her clients from using Facebook for the duration of their family law case—especially if they cannot manage their computer rage.
While the voluminous written record in excruciating detail of everything that has ever transpired in our clients lives can be useful, it often leave lawyers in a situation where they must dig up.
Where is the line between creating useful evidence and creating evidence that hurts you? It’s a tough one to navigate, but here are some things to keep in mind before you hit send.
One: You just never know how things are going to play out. Time and time again, I hear clients tell me, “I never thought he or she would do this.” Guess what— people under emotional stress do crazy and out-of-character things, like using children as a pawn in a dispute.
It might not be a bad idea to keep a record of pickups and dropoffs in case you ever do get into a dispute about parenting time. Consider confirming arrangements with your ex via email or text. Documenting reserved and polite communications (on your part, if not your ex’s part) about dropoff and pickup times for your kids can be exceedingly useful if parenting time or contact with children ever becomes an issue.
Two: Keep in mind all your communications between you and your ex can become public record. Consider refraining from sending or engaging in any yelling, ranting, or raging written communication.
Remember, everything and anything in writing could end up before a judge and if you rant, rave, cajole, and insult your ex, it could affect your family law case and, therefore, your relationship with your children. It’s embarrassing—for you and everyone else that has to read it. Nothing remains private in a family law case.
The courts only care about your kids and making sure that they are raised in the best way possible, despite your dysfunctional relationship with your ex. So, think before you hit send.
Three: Divorce is largely a no-fault system in Canada. Have you lived separate and apart for one year? Yes? Say no more, here is your divorce.
The legal forum is not the place to hash out the causes or a relationship breakdown, or to get revenge on your ex. That’s what counsellors are for.
Four: Having cautioned you about creating messages, let me caution you about deleting messages: the written record may be important to you. Later you may need proof about the awful text messages your received from your ex to demonstrate he or she should not be allowed near you or your children. Those messages might be the basis for you getting some added protection from the court, if your ex happens to be abusive and ends up harassing you.
All in all, the easiest way to manage what your data says about you is by controlling the words you create and send forth.