Sending Your Ex a Text in a Child Custody Case Can Be a Mistake

It has been more than 50 years since the first cellular telephone call.

According to CNN, Motorola engineer Martin Cooper stood on a New York city sidewalk on April 3, 1973 “with a device the size of a brick and made the first public call from a cell phone to one of the men he’d been competing with to develop the device.” 

“I’m calling you on a cell phone, but a real cell phone, a personal, handheld, portable cell phone,” Cooper told Joel Engel, head of AT&T-owned Bell Labs.

It would be another decade before cell phones would be available to the average consumer but the device would eventually become an indispensable part of our lives. In fact, the World Economic Forum reports there were more than 8.58 billion mobile subscriptions in use worldwide in 2022, compared to a global population of 7.95 billion.

It is difficult to imagine life without the ubiquitous cellphone. They allow users to access the internet to shop, bank and get directions. We can take high-quality photos and videos, stream videos and play music. Of course, a cellular phone is an invaluable communication tool, enabling us to make calls from practically anywhere. 

It also allows texting, which has become the go-to method of keeping in touch for countless people. At the beginning of this decade, it was estimated that 23 billion texts were being sent worldwide each day. That’s 270,000 texts every second.

Texting certainly has its place but it can also create problems, especially during a contentious divorce. In fact, if you send toxic texts to your ex during an acrimonious child custody case it can tip the scales against you.

You may be dealing with a range of emotions during a divorce and communicating with your ex can lead to problems you might not have anticipated. At Cambria LLP we can help you navigate the challenges of a separation and divorce and can offer advice to help you effectively communicate with your former partner.  

The Dangers of Texting

Texting is certainly convenient. You can do it at any time of day from anywhere there is cell phone service. It is generally quicker than a phone call, it enables you to multitask and you have a record of your conversation. But there are drawbacks.

“Our increasing preference for texting over email and phone calls creates a higher quantity of interactions, but it decreases their quality, harming our relationships,” psychologist Maggie Mulqueen wrote on NBC News. “Indeed, it’s a far cry from paying attention and listening to the thoughts and feelings of another person, and it’s missing the human contact and learning that comes from true dialogue.”

She explains that the problems begin with the way texting “converts the interchange of human connection to brief, stilted fragments.”

It can be challenging to understand the intention of the message “without facial cues and tone of voice.”

“Worse, it encourages passive — or more often passive-aggressive — behavior, what I call hit and runs,’ Typing on a screen invites impulsive responses,” Mulqueen states. “Absent the ability to see the reflection of pain or hurt on someone’s face, it’s easy for people to pound out anger or meanness.” 

The Convenience May Not Be Worth It

Life can be busy and we all look for ways to make things easier. A quick text to tell someone you are going to be late or to pass on information can help ease everyday stress. But it is important to think twice before sending a text to your former partner during a divorce, especially if you are angry or upset. Even if you mean no harm, a text can be taken out of context and exacerbate an already tense exchange.

When you are in the middle of a divorce, there may be times when communicating with your former spouse is necessary, especially if you are dealing with family access issues. A text to convey simple messages such as where to pick up your children and at what time would seem to make sense.

However, even simple texts can spiral, especially if your breakup has turned nasty. Something as trivial as arranging a drop off point can escalate into aggressive or abusive language. People can also make assumptions that can lead to angry confrontations. For example, someone can have a legitimate reason for not responding immediately to a text. But the sender may be waiting impatiently for an answer, growing angry and continuing to text, getting even more irate.

You may not have time for a face-to-face meeting or a telephone call. You may also be hurt or harbouring feelings of resentment over your breakup and prefer not to speak directly to your ex. These are also legitimate reasons to consider texting. 

Whatever the reason, it is always a good idea to carefully plan what you are going to text. Typing words into a phone is much different than talking directly with someone and it can be easy to lose your temper, or forget to show common courtesy. Words can be misconstrued and that text can be saved, reproduced and redistributed. It is also possible that it can be used as evidence against you.

Texts Can Be Used in Court

Don’t make the mistake of thinking texts are private conversations between you and your former spouse. They can be used against you in court as long as they are relevant, authenticated and obtained legally (and subject to certain rules and limitations). 

Courts take a dim view of mean-spirited text exchanges, as illustrated in a child custody case where a judge admonished a divorcing couple for their exchanges regarding their son.
According to the judgment the conversations “would deteriorate to insults, swearing, and name-calling.”

“Their pattern of discourse is toxic and too well entrenched to expect genuine change,” the judge wrote. “[The son] deserves better than texting between his parents. That medium has not served him well to date. Among other drawbacks, texts are rife with potential for misunderstanding, for being socially disruptive, and for creating expectations of an immediate response, be it in the mind of the sender or the receiver.”

It is not only a wise idea to limit your text or email exchanges, you should also avoid airing your grievances on social media. It is not uncommon for people to share details of their personal life on X, WhatsApp, Instagram, Facebook or Tik Tok. However, anything posted online has the potential to become evidence. Although you may be able to delete content, it can be difficult to remove it permanently. A post can be copied, shared and archived. Even if you believe your post is benign, in the hands of a skilled family lawyer it could be used against you and potentially weaken your case.

As well, texts, emails and social media postings could jeopardize your relationship with your children if they are somehow exposed to them. 

Think Before You Text

People often make hasty decisions in the heat of anger. Technology allows us to communicate instantaneously. But some communications can wait. If you are feeling stressed and irritated while composing a text, the smartest thing you can do is to take a step back before hitting send. Cool off. Put the phone away and come back later to reread the message. You may even want to run it by someone first.

Using text as your primary means of communication during a divorce may not be in your best interests. Emotional outbursts or accusations via text can come back to haunt you. Try to remember to focus on brevity and clarity. It may be difficult in a bitter divorce but remain respectful. When texting remember to:

• Limit communication and stick to factual information, such as important dates concerning your children.
• Don’t let your emotions get in the way. Remain calm and avoid arguments. If you receive a message that upsets you take the time to cool down before considering your response or contact your lawyer for advice.
• Save all correspondence such as emails and text messages related to your divorce. They may be relevant to your legal proceedings. 
• Consider meeting face-to-face or having a phone conversation for complex issues. Avoid discussing sensitive legal matters on text. You may want to consult your lawyer first depending on the issue. 
• Avoid using slang or emojis in a text. They can be misinterpreted.
• Don’t send insulting, threatening or harassing messages and avoid making accusations or being passive aggressive.
• Don’t share personal information about your ex on social media. It could be viewed as a violation of their privacy and may be used against you. 

We Can Address Your Concerns

The emotions of a divorce, especially one that is contentious, can test even the most patient person. But a text sent in anger can have long-lasting consequences. It is important to note that while courts may accept a text as evidence, it must be proven it was not obtained illegally through theft or other illicit means and has not been fabricated. That is why having an experienced lawyer working on your behalf is essential.

The team at Cambria LLP is available to help if you have questions about how to safely and effectively communicate with your ex during your divorce. Contact us today to learn how we can support your case.