Beginning in the Fall, 2022 Apple will be making changes on phones that could affect divorce and custody cases in Family Courts all over the country in a not-so-good way. The new IOS 16 operating system will allow people to edit, and even unsend, their text messages within fifteen minutes from the time they were originally sent. That will give cell phone users an option they never had before, but from a Family Law perspective it could result in critical evidence being altered or lost altogether.
Text messages have become an important source of evidence in contested divorce and child custody cases in Family Court. Often, a text message is the proof that tips the scales in favor of a parent who is seeking legal decision-making authority, or of a mom or dad who is asking the Court to restrict the other’s parenting time (or increase their own). Where a threat is made via text message, people can keep themselves safe by using that text message as evidence when obtaining an Order of Protection. There is probably not an experienced Family Law attorney anywhere who hasn’t, at one time or another, successfully used a text message to obtain a favorable result for a client in court. However, that may change in the Fall of 2022.
- An abusive husband sends a threatening message to a terrified wife, warning that he is going to physically harm her and the children, as he has done in the past. She receives the message and reads it right away, but then the abuser quickly deletes it so she will have no proof of the threat.
- A vengeful mother sends a text message to Father stating: “I’m taking the children and leaving. You’ll never see them again.” She then deletes the message and later, at trial, denies ever having made that threat.
- A spouse sends a ballistic text message to the other spouse revealing their malevolent feelings and intentions, but later edits the message, and waters it down to assure that it cannot be used against them in court.
In all three of these cases, the text message itself might have persuaded a judge to rule in favor of the aggrieved party and enter an order designed to protect the party and/or the children. But if the message is edited or deleted, then that opportunity may be lost.
Of course, for the vast majority of cell phone users, the ability to edit or delete a text message is a good thing. (I’m sure there have been many times when all of us would have loved to edit a text message to correct a misspelling or add another important point.) This new development can only be considered progress. But progress means change. And with change comes the need to adapt.
One way for a party involved in a Family Court litigation to adapt would be to immediately take a screen shot of any text message that could be considered threatening or impactful, and then save the screenshot and send it to your attorney. That way, you are preserving the evidence. And that’s a good thing. Because evidence is proof. And proof is what it takes to win in court.
By Gary J. Frank
At the law firm of Gary J. Frank P.C. our Arizona Family Law Attorneys, Gary Frank, Hanna Amar, and Logan Matura are strong litigators and compassionate Counselors. Gary Frank is a Phoenix Family Law Attorney with 40 years of experience as a litigator and mediator. he has also acted in the capacity of a Judge Pro Tempore in the Maricopa County Superior Court and served on the Governor’s Child Abuse Prevention Task Force. Law firm partner, Hanna Amar, is a highly-skilled Arizona Family Law Attorney with a passion for Family Law children’s issues. She has extensive courtroom experience and is also a certified Mediator. Hanna has also acted as the President of the Young Lawyers Division of the Maricopa County Bar Association, and was recently named as an elite Super-Lawyer. Associate attorney, Logan Matura, is an Arizona Family Law Attorney who received her Juris Doctor degree from New York Law School in Manhattan, NY. While in law school she served as an intern for a Family Court judge in the Bronx, NY, and was a member of the Family Attorneys Mobilizing Club. Our firm handles Family Law cases in the areas of divorce, custody (now called “Legal Decision-Making and Parenting Time”), relocation (move-away), division of property, spousal maintenance and child support, modification actions, enforcement actions, grandparent, step-parent, and non-parent rights, as well as other matters pertaining to families and children. If you are in need of a consultation, call us today at 602-383-3610, or you can contact us by email through our website at www.famlawaz.com. We look forward to hearing from you.