A common question that arises in a divorce, custody proceeding, or Order for Protection proceeding is “can I use text messages in my case?” The answer is not a simple “yes” or “no.” Rather, this question opens the door to a complex evidentiary analysis. In particular, Minnesota Courts refer to the Minnesota Rules of Evidence for such answers. While it is best to speak with a licensed attorney about your specific text messages you want to submit, there are common hurdles that must be cleared before a court will consider a text message as evidence.

Is the Text Message Relevant?

One of the first hurdles a text must clear is that the text message must be relevant to the proceeding and, more specifically, to the specific topic being addressed by the Court. For example, a text message from a parent about attending Monday’s Viking’s game may or may not be relevant depending on the reason you want to submit it. If the text message is used to show that a parent failed to exercise his/her parenting time, the Court may consider it relevant to a parenting time and/or custody determination. It is also important to understand that the relevancy of a text message may depend on its use in conjunction with other evidence (testimony, other text messages, etc.).

Is the Text Message Hearsay?

In general, the Court cannot consider a text message if it is hearsay. Minnesota’s Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” In the context of text messages, this raises three specific questions:

  1. Who sent the text message?
  2. Who is offering the text message as evidence?
  3. What reason is the text message being submitted to the Court?

Depending on the answer to the questions, the Court may reject the text message as hearsay. To complicate matters even further, there are several exceptions to the hearsay rule.

Is it the Right Time to Submit a Text Message?

This may be the most important question. Divorce, custody, and Order for Protection proceedings are all governed by procedural rules. A Court may outright reject seeing a text message because you are at the wrong stage in your case to submit evidence or were required to submit any evidence prior to even attending Court. Additionally, in most instances, Minnesota Court Rules require that you apprise the other party of the text message prior to submitting it to the Court. If you submit it at the wrong time or improperly, the Judge may never see or consider the text message.

As you can see, submitting text messages as evidence is far from simple, despite text messages playing a vital role in today’s Family Court proceedings. It is important that you understand when, how, and where to submit your text messages to the Court. These same concepts also apply to other forms of communication, such as Facebook and Twitter.

If you have any questions about whether or not text messages or social media postings can be used within your Family Law matter, please call me today at 651-647-0087 or reach out via our online contact form to set up your free consultation.

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