What You Need to Know About Email Evidence

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It never fails in child custody cases.  The two parents jockey for position as they prepare for a custody battle, and belch out a blizzard of emails and text messages to each other.  This electronic correspondence catalogs all manner of accusations between the parents, as if a pantheon of judges were looking over the shoulders of the authors.  A single topic can entail thousands of words and wander over dozens of paragraphs in chains that may span days.  In the course of a custody dispute, the fighting parents can churn out thousands of these things.

And your lawyer has to read every one of them.

They chronicle whether pineapple pieces were cut to the right size, or even the right shape, in a child's lunch dropped off at daycare.  They self-righteously demand the return of sippy cups, because the other did not put the correct ones in their child's backpack.  Or they inform the other parent that the child's runny nose has not improved, so Parent A is taking the child to the pediatrician, whereupon Parent B drops everything at his or her top secret job vital to real-time national security, and drives like a banshee to the office of the hapless doctor so that the Parent A will not be seen as the one more attentive to the child's medical needs.  You think I'm joking?

The emails say, "as you know ..." when the opposite is true.  They say "for the record" when there is no such thing.  They say "thank you for your email ..." when the email was anything but welcome, and "have a nice day" when the author really––and obviously––wishes bubonic plague on the other parent.

Sometimes the emails consist of one single monolithic paragraph running on for more than a page, a massive gray block of unbridled, unedited free association.

If you are prone to such communications, you need to stop.  For four critical reasons.

One, no judge is even slightly interested in your attempt to establish some sort of email "record."  Most folks who do this sort of thing think they are creating, preserving, or making note of evidence, as if a judge were––as I said––looking of their shoulders as they write.  If you think that by writing an email or text you are somehow preserving the facts of an altercation with your ex at the soccer game last Saturday, think again.  It is NOT EVIDENCE.  It is inadmissible self-serving hearsay.  Repeat that to yourself several times.

Second, somewhere in this mountain of email there will be something you really, really wish you could take back.  THAT email will indeed become evidence against you, count on it, because "statements against (your own) interest" are admissible.  And it will hurt your case.

Third, it is hugely expensive for an attorney to plow through the typical massive volume of electronic communications between parties, interpret it, and boil it down to some modicum of digestibility for court.

Fourth, and most importantly, binders containing dozens of emails and texts run the serious risk that the presentation of them will either a) anger your judge, or b) put her or him to sleep.  Most and sometimes all of what you think is important for a court to know to make a child custody decision is completely irrelevant.

The sad and annoying truth is that the bulk of such communications are not really about the well-being of the parties' child, but instead are an opportunity to engage in argument with the other parent, which is far more fun in a dark, sardonic way.  In some primitive part of the human brain, we love to hate, sometimes more than we love our children.

So, here is invaluable free advice:

  1. Limit your electronic correspondence, in quantity and in content.
  2. If yours is a custody case, correspond strictly about your child's well-being, development, and the logistics of visitation.
  3. Never, ever talk about the history of your relationship with the other parent.
  4. Do not argue with the other parent, period.
  5. Don't write that you are only concerned about your child's "best interests" or "what is best" for him or her.  Everybody says that, most battling parents don't mean it, and if you do mean it you don't need to say it, for your good intentions will speak for themselves.  

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Christian Curtis, LLC Alexandria VA
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