Can your cell phone be imaged? Can your spouse obtain a copy of your Facebook archive? What about text messages and emails? These questions and more are answered in Episode 12 when the tables are turned and host Jaime Davis is interviewed by her interns Grace Massarelli and Olivia Daniels about evidence in child custody cases.
Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.
Jaime Davis: Welcome to Episode 12 of ‘A Year and A Day’. I’m your host, Jaime Davis. In Episode 11, I discussed the dos and don’ts of custody litigation with my colleague, Melissa Essick. In this episode, I will be discussing evidence in family law cases with my summer interns, Olivia Daniels, and Grace Massarelli. Olivia is a rising senior at Davidson College where she is working towards a Bachelor of Arts degree, majoring in history with a minor in English. Olivia has spent the summer interning at Gailor Hunt and she plans to apply to law school in the fall. Grace is a recent graduate of the University of North Carolina at Wilmington where she earned a Bachelor of Science degree in economics. She will be starting her first year of law school at Campbell University’s Norman Adrian Wiggins School of Law in the next few weeks. Welcome, ladies.
Olivia Daniels: Hello.
Grace Massarelli: Thank you, Jaime.
Jaime Davis: So, I’m really glad that you ladies are here with me today. When you all first got to Gailor Hunt this summer, you asked me if there was anything you could do to help with the podcast.
Olivia Daniels: Mm hmm.
Jaime Davis: And after giving it a little bit of thought, I asked you guys if you wanted to come up with your own topic and to host an episode. So, in this episode that’s what we’re gonna do. We’re gonna do things a bit differently today. I’m gonna hand the microphone over to you all, and you guys are gonna host today.
Olivia Daniels: Thanks, Jaime. We’re excited to be here. Right, Grace?
Grace Massarelli: We cannot wait.
Olivia Daniels: So, something that we have both been doing during our internships at Gailor Hunt, is go through a lot of evidence in a variety of different cases. So, today we wanted to talk to Jaime about the kinds of evidence that she often comes across in family law cases. So, Jaime, in custody cases in particular, what are the types of evidence that a party can request?
Jaime Davis: Well, so, in general, parties can request evidence that is relevant to the pending subject matter or that’s likely to lead to the discovery of admissible evidence. So, in custody cases what we are typically asking for, um, are things related to the health and welfare of the children. Like, school records, medical records, um, if any testing has been done, maybe one of the children has a learning disability. We’re also looking at communications and when I say communications, I mean between the parents, between the parents and the child, and also between the parents and any third parties if those communication relate to the children or otherwise relate to the lawsuit.
Olivia Daniels: Great, so kinda piggybacking off of that, what are the most typical categories of evidence used in a custody case?
Jaime Davis: Wow, there are so many different types of evidence, um, that we use in custody cases, but I would say more often than not, uh, we’re talking about medical records, school records, emails. Um, like I mentioned earlier, between the parties, between the parties and other people, between the parties and the child. Also, text messages have become very important in custody cases. Um, social media, a person’s Facebook account, maybe their Instagram, their Snapchat. Um, occasionally perhaps LinkedIn, or something like that.
Olivia Daniels: Mm.
Jaime Davis: Um, even the computer, the smartphone, or the tablet itself, um, can be requested in discovery in a custody case as well as any, you know, regular pictures – print pictures, electronic pictures, maybe audio recordings, videos. And in some custody cases, um, believe it or not, we even have PI reports that we use.
Olivia Daniels: Wow, that is a lot of evidence to sort through. Um, how would you request this type of evidence?
Jaime Davis: Well, there are typically two ways that we can go about, um, asking for these things to be produced. One way is what’s known as a request for production of documents. Um, that is a formal request that we serve on the other side and basically it sets forth all of the different things that we’re asking for. You know, maybe a category is produce all pictures of you with the minor children from a certain date to the present, or something like that. Another way that we can request evidence is through the use of a subpoena. Um, and we can serve that subpoena on a third party who might have evidence that is relevant to our custody case. Um, maybe there is a grandparent who frequently communicates with the mom or the dad, or even with the child’s teachers or, you know, otherwise has communications that are relevant to the custody action. And so, in those cases we can actually send a subpoena to that person to request that they produce the information.
Olivia Daniels: And once someone receives a subpoena or a request for production of documents, how long do they generally have?
Jaime Davis: Well, for a request for production of documents, um, they get 30 days to answer and then they can ask for one 30day extension. And so, when we are serving this request on the other party, it can take us up to 60 days –
Olivia Daniels: Mm hmm.
Jaime Davis: – to actually get the documents produced. Um, with a subpoena, the timeframe is usually a little bit shorter. Um, sometimes we can get the documents, you know, in, I’d say, 2 weeks or so. Um, sometimes a little longer.
Olivia Daniels: So, can parties request each other’s medical or mental health records as evidence?
Jaime Davis: Um, they can if it is relevant to the case, and I will say that in most custody cases, typically if there are mental health records, um, it can be argued by one side or the other that those records are relevant. And so, if we want to request, for example, the other side’s mental health records, um, we would need to do that through a judge-signed subpoena. Um, another way that we could get those records would be if, if both sides have mental health records that need to be produced, perhaps both parties would be willing to sign a release, um, so that both parties’ records would be produced.
Olivia Daniels: And then, is anyone ever allowed to delete evidence?
Jaime Davis: So, the answer is no. Um, a party should never delete evidence. Um, if you are already a party to a lawsuit, that goes for your text messages, your emails, your Facebook page, believe it or not, you can’t go on and cherry pick which photos are not very flattering of you and, and delete them.
Olivia Daniels: Mm hmm.
Jaime Davis: Um, you’re under a duty to preserve evidence. And this is true even if you think that you might become a party to a lawsuit. So, let’s say that you and your, um, partner get separated and there is a chance that there could be a custody lawsuit. At that point, you are under a duty to preserve evidence, and when you go speak with a lawyer, if you do, your lawyer should tell you that. They should advise you that you should, believe it or not, um, make a backup of evidence that could be destroyed. For example, um, data on a cell phone. Right? You know, people lose their phones. Phones get destroyed. Maybe you dropped your phone in the pool.
Olivia Daniels: Mm hmm.
Jaime Davis: Um, you need to have a backup of that evidence so that you have complied with your duty to preserve it for the lawsuit.
Olivia Daniels: And what are the consequences of deleting evidence?
Jaime Davis: Um, so it depends. Um, but what could happen if you are involved in a lawsuit and the other side can show the court that you purposely or even negligently deleted your electronic evidence, the court can draw an inference that whatever the evidence was, would have been negative to your position and so, that’s a pretty big deal. Um, it’s much safer and a better course of action just to preemptively protect your electronic evidence that way you don’t find yourself in that position.
Olivia Daniels: Okay, so assuming that you have an electronic device, how do you go about obtaining the evidence that may or may not be on the evidence?
Jaime Davis: So, typically what we do is we hire an expert to do that. Um, you know, most lawyers are not gonna be skilled in making an image of a cell phone, but you hire a forensic, um, electronic expert who can make an exact copy of the computer hard drive, or the tablet or the cell phone itself.
Olivia Daniels: So, when a device is imaged, does the opposing party just receive all the information and data that has been on that device?
Jaime Davis: Um, no. So, usually the way that works is that, let’s say that my client’s device is being imaged, um, I would supply a list of search terms to the expert, um, and they would review the data to ensure for example, um, you know, communications with me. To ensure that those were filtered out and then I would have the opportunity to review that information before, um, anything that is potentially privileged is sent to the other side.
Olivia Daniels: So, talking on emails between you and your client, is there ever a time when the opposing side could request them or ask for you to produce them?
Jaime Davis: So, typically emails between a client and his or her lawyer are privileged.
Olivia Daniels: Mm hmm.
Jaime Davis: And they are not subject to being produced to the other side. Um, there can be an exception; however, if a client is forwarding attorney-client privileged emails to third parties. The other side could then argue that your client has waived the privilege and that they would be entitled to the information, and so, um, it’s really important that you advise clients not to forward their communications with you as the lawyer because you don’t wanna risk that big way for privilege.
Olivia Daniels: So, if you have someone, you know, a brother or a sister that’s not a party to the lawsuit at the time and you wanna keep them kind of in the loop with what’s been happening and what the attorneys have been saying, what would it look like if you wanted to forward an email to them? Is that still a big no no?
Jaime Davis: So, I would say forwarding an email is a no no. I wouldn’t advise a client to do that. I think if they want to talk to someone who is close to them about the lawsuit, they just need to understand that they are potentially making that person a witness. Um, I think it’s fine to still talk about your children and your life, and how you’re feeling. Um, but, you know, your close friends and family members probably don’t need to know all the ins and outs of your lawsuit. Um, you know, if there’s somebody who you want to come testify for you, great, but just remember that anyone you’re talking to about this stuff is potentially going to be a witness in your case.
Olivia Daniels: So, once you get emails, for example, from the opposing party, how would you use that in court, or in the custody case itself?
Jaime Davis: So, typically if there are emails that we have gotten from the other side, we will use them in court to impeach the person’s testimony and so what that means is if the other side is trying to paint this picture in court that they always communicate, um, very cordially with the other parent and it’s the other parent who’s, you know, ratcheting up the tension, and let’s say I’ve gotten some emails from this person, um, in discovery where they say just terrible things about my client, I will use those emails to show the court that, um, the other party was not being honest in their testimony.
Olivia Daniels: So, a little earlier we mentioned cards and calendars and that sort of evidence. How would you exactly use a, a card in court?
Jaime Davis: Yeah, I can see where that might be a little confusing.
Olivia Daniels: Mm hmm.
Jaime Davis: So, typically if we use, like a greeting card, um, maybe it’s, I’m gonna use a Mother’s Day card, and in the Mother’s Day card the dad was just going on and on about what a wonderful mother this woman was, that, you know, she’s a blessing, that, you know, she’s the best thing ever. If he in court is then trying to say that my client is a terrible mother, that she’s always been a terrible mother, that she doesn’t know how to parent, you know, I might use that card as an exhibit to say, well, at least, you know, a year ago when you sent her this card you didn’t think she was a bad lady.
Olivia Daniels: Mm hmm.
Jaime Davis: And so, I think, again, it can be used to impeach the other side.
Grace Massarelli: If you think that you might find yourself in a custody dispute some time in the future, what are some ways to proactively start conserving, um, evidence or documenting or kind of just, what are some steps to protect yourself?
Jaime Davis: Really, you just said the key word. It is all about documenting. Um, it’s important to keep a journal or some sort of record where you can just jot down notes of things that have happened. Um, let’s say that your co-parent is routinely late picking up your child from school. Make a note of it. Um, if, you know, he or she didn’t show up at the parent-teacher conference, make a note of it. You’re not gonna remember these things most likely by the time you get to a trial, if there ever is one, and so really, I encourage my clients to keep a custody journal or just, you know, it can be a notebook with some notes in it about things that have happened. You know, the date and what happened. And I also encourage them that if something strange happens and they can’t really pinpoint why it’s strange, note it. You know, did the other parent say something that, you know, just didn’t sit right with you. Make a note of it. Um, you may never need this stuff again one day, but if you need it, you have it and so I think it’s just better to be prepared. Um, same with a, a calendar. I think calendars are really important to just, again, you may never need this, but, you know, it’s good to know how many overnights your kids with you versus with the other parent. And so those are a couple of things I think you can do. I also think that you, um, can start communicating with the other parent in writing about important things just so you both know what you agreed to. Um, if it’s about a pickup time for the children. If it’s about whether or not the other person agrees that your child can participate in an extracurricular activity. If the two of you agree on a variation in your basic custody schedule because somebody needs to go on vacation and maybe they need to pick the child up a day earlier. Just have that stuff in writing and that way neither one of you will be confused later about what the deal was.
Olivia Daniels: So, one form of evidence that we haven’t discussed yet are financial documents. When can you request bank statements or other financial reports in a custody case?
Jaime Davis: So, the general rule is that you can seek discovery of evidence that is relevant to the subject matter of the action. And, if the subject matter of the action is custody, you’re gonna have to show a link between why you need the bank statement or the credit card statement, or whatever it is, and custody. Now, if child support is also pending, you know, those records are most often relevant to a child support claim and so then you could request those records. Um, if it’s solely in the context of a custody claim and there’s no financial claim pending, you’re gonna have to show some reason why you need these documents. For example, maybe the other side asked you to keep the children and he or she claimed he had to work, but you know, maybe a friend told you that he or she really went on vacation with a girlfriend or a boyfriend. Um, you may be able to show the court that you need those financial documents to prove that the other parent was not being honest about his or her whereabouts.
Grace Massarelli: You mentioned PIs earlier, and I was wondering what kind of evidence do you generally obtain through private investigators?
Jaime Davis: So, it depends on the type of case. Um, but if it’s a custody case, a PI can be useful if you think the other parent is drinking excessively, maybe they’re drinking and driving, um, maybe they are frequenting bars. Maybe they have a drug habit, or if you think the parent is leaving the children with a babysitter and going out. These are all of the sorts of things that a PI could help you find out. Um, of course if you are involved in an alimony case, let’s say, um, PI evidence can be helpful to determine if the other spouse is having an affair. These are the typical types of cases that you think about having PI evidence in.
Olivia Daniels: So, another question for you, Jaime, are there laws regarding the use of audio or video recording devices to collect devi – evidence?
Jaime Davis: Um, yes there are. So, you must be a party to the conversation in North Carolina to be able to record it. North Carolina’s what’s considered a one-party state. So, that means if you and I were having a conversation, and I wanted to record it, I could and I wouldn’t have to tell you. Um, that is if both parties are in the State of North Carolina. Now, bear in mind that different states have different laws and so I can’t speak to whether that would be true if the other person was in Florida or South Carolina or, or somewhere else. Um, video is different. So, you can record video. You can record video in your home, um, but the video recorder needs to be in a more public area of the house. It, it all goes back to whether the person being recorded would have a reasonable expectation of privacy and so a camera in the bedroom, probably a bad idea. A camera in the bathroom, again, bad idea.
Olivia Daniels: Mm hmm.
Jaime Davis: But, if there is some sort of recording device, again this if we’re trying to video, not audio. Audio is different. Um, in a public area of the home, and when I say public area I mean, like, the living room or the kitchen or something like that. It’s probably okay. Again, audio, you can’t leave, for example, um, a voice-activated recording device just sitting around. That would be considered wiretapping. You must be a party to the conversation in order to be able to record the audio.
Olivia Daniels: Since we’re in the age of information and there’s just so much on the Internet, I’m interested to know what types of evidence can be obtained from social media accounts.
Jaime Davis: Wow, um, so social media accounts can be a gold mine of evidence in a family law case. Um, if the person has a public account, you know, you can just go on the Internet and see whatever they’ve posted and, and print it out. Um, when we conduct discovery and we send those formal requests to the other side asking them for documents, we can actually ask them to give us information related to their social media accounts. And so, for example, Facebook, um, you can actually print a Facebook archive of your account and so we will include those instructions for how to do that in our request for production of documents so that we expect the other party to go into their Facebook and actually download this archive and print it. And, it’s kinda scary but the archive basically has everything in it that you have ever done on Facebook. Um, if you have posted a picture, if you have made a comment, even you Facebook Messenger messages oftentimes are included in that archive and so for a family law attorney, social media can be crucial to the case.
Olivia Daniels: And, how long are these Facebook archives generally?
Jaime Davis: Um, I don’t know for certain, but from the ones I’ve seen, I mean they seem to go back to the beginning when the account was created.
Grace Massarelli: Would you recommend making fake accounts to collect evidence found on social media posts?
Jaime Davis: Um, no I wouldn’t. Um, I think that that is unethical.
Grace Massarelli: Right.
Jaime Davis: And for a client to lie and pretend that they’re somebody that they’re not, again, if the other side has a public account and they can just see everything they’ve posted anyway, I think it’s fair game.
Grace Massarelli: Mm hmm.
Jaime Davis: Um, I also think it’s fair game if you maybe have a mutual friend with the other side and so if that person is willing to let you see their Facebook account and through that account you happen to see your exspouse’s or your coparent’s account, you know, I think that’s okay too. But, since you can request this information through formal discovery and appropriate means, I always tell my clients to take the high road and get the evidence the right way.
Olivia Daniels: Definitely.
Jaime Davis: So, you can be sure that you can use it in court.
Olivia Daniels: Right.
Grace Massarelli: Besides social media, what other kinds of written communications can be evidenced in custody cases?
Jaime Davis: Um, emails between the parties, text messages between the parties, um, sometimes we get the old school handwritten letter or the, um, Mother’s Day card that the dad gave the mom, you know, that could be evidence. All sorts of things.
Grace Massarelli: And so, do you recommend that, um, during a lawsuit or a conflict, attorneys be copied on written communications between the opposing parties?
Jaime Davis: No, um, I think that the parties themselves should communicate with one another and I think that it can sometimes escalate the tension between the parties if each party is constantly copying their lawyer on the communication. Um, what we can do if there are cases where the parents have trouble communicating with one another, at the beginning of the case we may ask the client to send us their email before they send it to the other parent so we can read it and make sure the tone is appropriate and that they are not saying anything that they would be ashamed to read out loud in court one day and we will help them learn how to communicate with the other parent. But, no, um, I certainly don’t want to be copied on every single email between my client and the opposing party.
Grace Massarelli: So, what kinds of non-electronic evidence are usually used in family law cases?
Jaime Davis: Nonelectronic, um, so I would say, photographs are a biggie. Um, photographs of the parent and the child doing fun things together. Maybe some photographs of their house to show that they have a suitable living environment for the child. Um, and then on the flipside, you know, there may be photographs of the other party doing something they shouldn’t. Maybe they are out drinking or partying and there are pictures of that. Um, we also sometimes use calendars and journals to try to prove how many overnights the child, uh, was with a particular parent in a given period of time. Um, sometimes there’s actual, what you think of as physical evidence, you know, maybe, um, there is a parent with a drug problem and the other side has seen drugs and paraphernalia in the house. Again, we don’t want them to bring the actual drugs and paraphernalia into the courthouse because that would be bad.
Olivia Daniels: Mm hmm.
Jaime Davis: And they would probably be arrested.
Olivia Daniels: Mm.
Jaime Davis: But if they want to take a picture of it, that picture could be evidence in the custody case.
Grace Massarelli: So, when you make a discovery request, how do you accommodate this kind of physical evidence that isn’t easily emailed over in a PDF, for example?
Jaime Davis: Um, so a greeting card is a pretty good example. Um, or maybe there are, I don’t know, voluminous journals. Maybe one of the parties has been keeping a journal throughout the marriage and they were married for 20 years. Um, we will make those things available for inspection and copying by the other party. So, what that does is it puts the burden on the other lawyer to come to your office and look at this stuff. If they want us to try and make a photocopy of it, of course we will, or we’ll let them send it out to a copying service, but some of these things you really can’t get the full impact of it unless you are there looking at the actual book or thing, or calendar, or whatever it is.
Grace Massarelli: So, what gener – what are general types for navigating written communication and Internet activity that you think we should kinda all abide to?
Jaime Davis: Um, if you are involved in a custody lawsuit, the lawyer’s preference is probably that you keep your social media posting, um, to a minimum.
Olivia Daniels: Mm hmm.
Jaime Davis: But there are some folks that they’re gonna post anyway, and so, we would just recommend that they, you know, be careful about the types of pictures that they’re putting out there, that they be careful about where they’re checking in. Um, you know, especially on Facebook you can check in to whatever your location is, and depending on whether or not you have the children, uh, where you check in might be used against you. Um, social media is also not a place during a custody lawsuit for you to be posting your feelings about the other parent or your feelings about the lawsuit, you know. Talk to your friends about those things, but don’t post them on the Internet.
Olivia Daniels: Right.
Jaime Davis: Um, I would say with communication such as emails and text messages, again, I always go back to take the high road and are you going to be ashamed to have to read this out loud in court?
Grace Massarelli: Those sound like some great tips for everyone, not just those involved in custody litigation. Thank you, Jaime, for having us today. We really enjoyed being here.
Jaime Davis: Well I’m so glad you all joined me today and, you know, I can’t help myself, I’m gonna have to ask you each at least one question. So, Grace we’ll start with you, what has been your biggest take away from today’s conversation?
Grace Massarelli: Wow, well I’ve definitely learned a lot and there’s a lot to think about, but I think as in, uh, the biggest thing I’m going to take away is that I’ve always had the misconception that my phone is just so personal to me and that no one would have, you know, a copy of everything that would be on it, or that that’s a possibility. So, I think just being mindful that even though it’s on my device and I might have a thumbprint to get into it, it’s not untouchable and just being intention with what I have on there.
Jaime Davis: That’s a really good point. Olivia, what about you?
Olivia Daniels: I would definitely agree with Grace on that, and I would also say that I’m thinking more about the ways in which my written communications and all the information I have out there could bring third parties or other people into something that I might wanna be a very private dispute with another person. So, definitely being mindful about my communications with my friends and family.
Jaime Davis: Right, because that can certainly affect your relationships with other people if they are suddenly brought into this custody dispute and they had no idea you were even involved in it. Well thank you again ladies.
Olivia Daniels: Thank you so much.
Jaime Davis: It’s been a great conversation. I hope you all enjoyed this episode of A Year and A Day. If you have any suggestions for future episodes, I would love to hear from you. You can email me at Jdavis@divorceistough.com. If you like what you heard today, please leave us a review on iTunes. As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not to do that. This podcast is for general informational purposes only, should not be used as legal advice and is specific to the law in North Carolina. If you have questions, before you take any action you should consult with a lawyer who is licensed in your state.