Can I Use Text Messages as Evidence in a Virginia Family Court?

Most Virginia courts accepts text messages as evidence due to a recent Court of Appeals decision. However, they’ll only accept “original” versions.

Text messages are a common form of evidence in divorce cases, custody disputes, and other family court proceedings.

However, getting a family court judge to accept text messages as evidence can be tricky.

Specifically, because of how easy it is to fake text messages, issues may arise related to the authentication of any text messages submitted.

In this article, we’ll talk about when you can use text messages in family court.

However, keep in mind that this is a complicated topic that varies quite a bit from court to court.

Always consult with your attorney well in advance of bringing forward text messages as evidence in family court.

Why You Should Use Text Messages in Family Court

Man Sending Text Message On Mobile Phone Whilst Using Laptop

There are a few different reasons you might want to use text messages as evidence in family court.

One of the most common is if you are seeking a fault-based divorce.

Virginia recognizes the following grounds for fault-based divorce:

  • Adultery
  • Cruelty
  • Abandonment
  • Felony convictions

While you may not need text messages to show that your spouse was incarcerated for a felony, they can be helpful in proving any of the other three grounds.

Similarly, text messages may be admissible in other family court cases, such as child custody cases.

Text messages can be used as evidence to corroborate certain events, or to establish patterns of behavior.

It can sometimes be hard to tell whether or not a specific message will help your case.

For this reason, you should talk to your lawyer if you think that a specific message or conversation may be useful.

How to Use Text Messages in Family Court

Cute young girl texting with her mobile phone

According to Virginia law, text messages are “writings.” In theory, that means that they should be admissible in family court.

However, the reality is a bit more complicated due to Virginia’s “best evidence rule.”

Virginia’s Best Evidence Rule and Text Messages

Like all courts, Virginia courts have strict rules to ensure any evidence presented will be accurate.

When it comes to writing, this means the production of an original copy of a writing is highly preferred over any copies.

If the original doesn’t exist, you may introduce other forms of record into evidence. However, the court will treat these with appropriate skepticism.

The takeaway here is to never delete text messages that may be relevant to your case.

Using backups from your service provider or other non-original methods may lead to the dismissal of the evidence.

Additionally, you should take care to archive any relevant messages or conversations so that you don’t lose them if something happens to your phone.

Similarly, while screenshots aren’t the best form of evidence, it’s always better to be safe than sorry.

Take screenshots of the messages and store them in two separate places both on your phone and somewhere else in the real world.

Dalton v. Commonwealth

In 2015, the Virginia Court of Appeals ruled that text messages are “writings” as defined by Virginia law.

For this reason, the “best evidence rule” applies to the admission of any text messages into evidence.

However, the court did not establish exactly what constitutes an “original” in regards to text messages.

This means that courts can still use discretion when determining which forms of text message are applicable in a particular case.

What does this mean for your case? As with any other writing, a court will prefer evidence of texts that is most easily authenticated.

Texts that are on your phone, or a record of texts from the cell service provider, will be preferred.

However, this won’t always be an option.

Under the best evidence rule, a court may accept screenshots of texts in certain circumstances. It really falls to the discretion of the judge in your case.

Obtaining Text Messages Legally

In addition to the best evidence factor, you will also need to consider where the text messages came from.

Only legally acquired text messages are usable as evidence in court.

For this reason, while you can use text messages sent to and from your personal device as evidence, those belonging to others are more complicated.

Remember that acquiring such messages can be a violation of federal wiretapping law, and can have serious consequences.

Instead, you may want to consider acquiring the text messages via subpoena.

Once again, the best way to do so is to have your lawyer send a letter to your telecommunications provider.

However, your lawyer may also be able to request evidence directly from your spouse or their legal counsel.

While this can be a difficult process, it’s preferable to violating federal communications law.

Finally, remember that you don’t always need the text of the messages themselves. For example, it can be significantly easier to subpoena phone records.

While these records won’t include the texts of any messages, they will show how often calls were made and where they went to.

This can be useful for proving facts related to harassment or adultery.

Proving Relevance

Note that there is one final requirement for using text messages in court: they have to be relevant to the case.

In a fault-based divorce case, for example, your texts must directly prelate to proving one of the one or more of the grounds of divorce listed above.

For this reason, it’s important to work with your lawyer to develop a strong argument to answer any objections to your messages on the basis of irrelevance.

What Do I Do About Text Message Evidence Against Me?

Smiling young woman sitting on pier and chatting over phone. Summertime

At the same time, it’s possible that text messages will be used against you in family court.

Fortunately, you do have legal options should this occur.

For the most part, this will mean drawing on the facts above, and asking yourself the following questions:

  • How were the messages obtained? Remember, messages obtained illegally are not valid as evidence.
  • Are the texts accurate? That is, are they representations of actual conversations between yourself and someone else, or do they appear to have been altered in some way?
  • What form to the messages exist in? Keep in mind that, unless the opposite party directly subpoenaed the service provider, you may be able to call into question the legitimacy of their version of events.
  • Are the messages in their correct context? Would introducing more context change the way the messages are read?
  • Are the messages relevant to the case?

Discuss these questions with your lawyer. Together, you can develop a strategy for dealing with text messages that might portray you in a bad light.

Conclusion

Woman texting on cell phone

Ultimately, the legal status of text messages in family court is still uncertain.

For this reason, you should always consult with an experienced family law attorney before you attempt to introduce text messages as evidence in family court.

By doing so, you can develop a legal strategy for establishing the legitimacy of those messages before you set foot in court.

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