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<xTITLE>Using Text Messages and Emails in Mediation, Family, or Divorce Court</xTITLE>

Using Text Messages and Emails in Mediation, Family, or Divorce Court

by Carrie Gour
April 2021 Carrie Gour

You might wonder: Can texts and emails be used in mediation, family or divorce court? 

Yes, they can.

Texts, emails, Facebook and Instagram Messenger and WhatsApp correspondence have all become common and accepted forms of evidence in divorce/family court and beyond. 

Whether clients are representing themselves, want to offer mediators or arbitrators objective, historical context or they’ve retained counsel and want to save thousands in legal fees, knowing how to collect, consolidate and quickly retrieve mobile evidence can be critical in obtaining desired results.

Mobile Evidence

In a legal context, everything that passes through our phone is considered “mobile evidence,” and it can be used to support a divorce filing, vary a parenting order, obtain a restraining or protection order or support harassment, defamation or even criminal charges.

When presenting mobile evidence, it must be as easy for a lawyer, mediator or judge to read and understand as possible: showing up in court with a phone expecting a judge to scroll through the messages on your device, for example, decreases the odds of a win  based on the evidence to near zero.  

If you’ve got a digital smoking gun (or a whole bunch of them), you want to be able to use it. Here’s a guide how.

What Should You Document?

Both sides of everything relevant.

This means the text conversation with an ex about their sister who put her dog on Prozac doesn’t need to be captured, but everything related to children or shared property probably does (more on relevance, below). 

Context is king, and unless both sides of the story are presented, opposing counsel can claim select correspondence was cherry-picked for the explicit purpose of defaming their client: within a thread, you need to capture every message sent to you, and every response sent in return. 

This means it’s necessary to be transparent about the angry, embarrassing responses too. With them, counsel can attempt a defense (“who wouldn’t lose their temper under the circumstances?”); without them, the other side could bring them up. If this happens, your lawyer is caught off guard, opposing counsel paints you as a liar and you erode trust as your own lawyer wonders what else you haven’t told them.

Relevance and Authenticity

Though widely accepted, text and chat app messages, emails and phone logs aren’t automatically admissible in court. For that to happen, clients must prove their evidence is both relevant and authentic.

  1. Relevance  In legal speak, evidence that’s relevant must be “of consequence to the determination” of the case. This means no one will care about a message from your ex saying your son ate Pop-tarts for dinner, say, but the message could be used to prove (a) who had possession of the child that day and/or (b) if a parent is following the child’s dietary restrictions or not. Whether a message is relevant is entirely dependent on the context and facts of an individual case.
  2. Authentic  You need to prove the messages admitted as evidence are authentic.
  • Have nothing edited or deleted (show the whole thread);
  • Have the time and date clearly visible in each message (“today” at the top of each message won’t cut it); and
  • Have the contact information clearly identified (to prove messages come from who you say they do). Ideally both the name and phone number or email address would be at the top of each message.

Ways to Save & Present Digital Evidence

Screenshot

Screenshots are the most common form of documented mobile evidence. They’re free and they’re easy: threatening texts? Instead of responding, take a screenshot. 30 missed called from an abusive partner? Take a screenshot of your call logs. Screenshots get saved in your photo folder.

With that, screenshots aren’t a great option if you’ve got a lot of messages to capture or if you have to go back 6 or more months: that much scrolling and snapping of 100’s of screenshots is brutal. This is when you want to look at other options.

Text Extractors

There are numerous apps and programs for both Android and iPhone that will “extract” text and chat messages from your phone and download them onto your computer as a pdf. Some are free, while others have fees attached. That said, if you’re dealing with hundreds of text messages, a text extracting program is worth it all day long.

iPhone

The first thing you need to know about getting messages off an iPhone is that you’ll have to connect your phone to a computer to back-up your device and capture them that way. Besides screenshots, there’s no “on-device” way to collect messages from your iPhone.

The second thing you need to know is that getting messages off an iPhone is complicated: there just doesn’t seem to be an effortless way to do it regardless of the third-party method you choose. If you’re challenged by technology, have your best IT-buddy nearby for help before you start.

In the “free” camp, whether you’ve got a PC or a Mac, EaseUS MobiMover helps you to transfer text messages from iPhone to computer allowing you to access and read iPhone messages on your computer. You can also use TouchCopy for free with some limitations. 

Decipher Tools is a great, affordable alternative. iMazing software has the most functionality out there, capturing a lot of other chat platforms in addition to text for a one-pay, lifetime license fee. With any of these options you’ll still need to manually collate the “channel’s” communications (email + text + WhatsApp for example), but you’ll get what you need. 

Android

For text extraction only, SMS Backup & Restore is a free app that does exactly what the name implies. Provided you’re running Android OS 4.0.3 or higher, it can back up your text messages and save them locally on your device. From here you can export them to a computer or upload them to an online storage service such as Google Drive. As with the solutions for iPhone, you’ll still have to manually merge any communications you have with your ex on other channels like email or other chat apps.

For Both iPhone & Android

The only personal data collection software specifically designed for legal purposes by people trying to solve their own legal challenges collecting and presenting mobile evidence, for a small fee PwrSwitch does two things:

  1. It will collect and consolidate text, email and *phone logs between you and another person from the time of sign-up going forward, saving it all in sequence in a time and date stamped, word-searchable document on the cloud. This means no manual collation; and
  2. It will collect and consolidate as much text and email history into a single, time and date stamped, word-searchable document on the cloud, as you have stored in your phone. Years worth, if necessary.

But here’s the big value: Whether on an Android or on an iPhone, unlike the alternatives, with PwrSwitch you don’t have to figure it out yourself. Of course you can if want to – but you don’t have to. PwrSwitch’s customer service far and away sets them apart from other applications, which is no small thing, especially when it comes to iPhone text extraction. You can hop on a screenshare with a real, live person, typically within hours of making a request, and they will hold your virtual hand from set-up through to getting what you need.

Good evidence can be the difference between justice and/or the outcome you want – and not. Give yourself the best chance of success and do it right!

*phone log capture is for Android only

Biography


After personally experiencing a high conflict separation and all that entailed, Carrie Gour co-founded the software company PwrSwitch. It's purpose is to support those dealing with a complicated divorce or co-parenting relationship by automating the manual, emotionally and physically exhausting process of documenting mobile communications for legal or therapeutic counsel.



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