A request to produce your phone or text message records is not uncommon during a custody battle in today’s technology-driven society. However, not all records will be admissible against you during a child custody trial. Issues pertaining to privilege, relevance and admissibility determine whether the other parent can legally obtain your phone records and, if so, whether those documents may be used against you.
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General Discovery Laws
Like in any other civil lawsuit, the collection of evidence in a family law case is governed by your state’s rules of discovery. These rules are usually found in the civil procedure code, although some states maintain a separate set of discovery rules pertaining solely to family law matters. When it comes to requesting documentary evidence in the form of records, it is not necessary that the document requested be ultimately admissible at trial. However, the person requesting phone records must be able to show that there is a legitimate purpose for the request and it is not to delay or harass the other party. The requesting party must also be able to prove that the request is necessary for the case and is not frivolous.
Objecting to a Discovery Request
You have a right to object to the other party’s discovery request. You will have a short window of time in which to file an objection, listing reasons why the discovery request should be denied. If the other party is trying to annoy or harass you and your phone records have nothing to do with your case, you can state this in your objection. You may be required to submit an affidavit or swear under oath that you made a good-faith effort to resolve the dispute prior to requesting a hearing. If a judge rules against you, he may order you to turn over your phone records.
As an alternative to a formal discovery request, a party in a child custody dispute can seek a subpoena (also referred to as a subpoena “duces tecum”) of your phone or text message records. A subpoena is a court order directing a third party (e.g., your wireless provider) to hand over documentary evidence material to an ongoing legal proceeding. The procedure to obtain a subpoena involves filling out a form at the family court listing the reasons why the records are necessary for the underlying case. If the judge or magistrate agrees, he will sign the subpoena and it will then be served upon the phone company.
There is an important distinction between relevance and admissibility. The other party may successfully request your phone records by showing the records are material and relevant to the case. However, he cannot actually introduce these records against you at a trial before a judge unless the records are admissible under the rules of evidence. Phone records may be subject to a host of objections at trial, including hearsay or problems with authentication.