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Emergency Child Custody: Collecting Evidence

The Micklin Law Group- Emergency Child Custody: Collecting Evidence

This series discusses the ins and outs of requesting emergency child custody in New Jersey. To read the other articles, visit The Micklin Law Group’s blog.

It’s important to keep records when you’re going to have to – now or in your future – go to court for emergency custody issues. Not every emergent issue happens in the present. You may not get a phone call and the other parent says, “I’m leaving New Jersey now.” You may get a message saying, “Hey, I got a new job in Florida. I’m moving next month.” So any time there’s an issue, it’s important to document that. It’s also important to know which pieces of evidence you should keep if you anticipate custody issues. Below is more on what to keep and how to collect it.

How to Compile Evidence In An Emergency Custody Case

When it comes to recordkeeping and collecting evidence, you really want to keep all important emails and text messages with the other parent. This is important because you’re going to need to prove not only what is happening, but the court’s going to want to know if you tried to resolve it, how accurate and authentic you’re being about the urgency, and other details about what’s happening. So always keep emails and text messages regarding custody matters, even if they’re not urgent.

This two-part series on YouTube discusses how to use email tactically in family law litigation because those that have custody problems, high-conflict divorces, and high-conflict custody issues will often have ongoing problems. So it’s not just today, and it’s not just one issue. One issue that may be less significant today becomes more significant as other issues pile up. You want to be able to go back to having these messages, especially text messaging, because that’s not only the more common way to communicate, but the more difficult to reproduce for a court. 

Now, don’t worry if you’ve gotten rid of important conversations. Many emails can be recovered from the trash for at least 90 days. There are phone apps out there that are really good for retrieving text messages, even ones that are deleted. If you have deleted conversations that you regret getting rid of, I highly recommend looking into one of these apps to try to get that evidence back. And remember that even if you can’t retrieve this evidence, you can start collecting new evidence today to create a compelling case. 

When you have custody issues that are likely to turn into emergent issues, you also want to keep any photographs, whether you take them on your phone or other people’s phones. You can also use Facebook and social media to find and save all these pictures and videos in a place where you can retrieve them and possibly upload or email them. If you have access to your co-parent’s Facebook, you can also save photos of your children, especially if the photos illustrate an issue that may lead to an emergency custody hearing.  

Keep notes and important timelines. If you write down in a journal or on a Google calendar things that happen that day, that is admissible. If you’ve recorded it at the time that it was happening and it was fresh in your mind, that can be admitted. It’s also just helpful for you and possibly your attorney to be able to recreate what was happening over the short history that led to this emergent application. So you want to have as much documentation as you can, and this is very possible with today’s technology.

Should You Hire An Investigator?

Another thing you can consider when collecting evidence is hiring a private investigator. This is going to be for parents who have some financial resources because they can be expensive. It’s also more advantageous if you’re having a serious issue that’s going to take some time to collect evidence before you feel you need to go to court. It also may help answer the question of whether or not something is urgent, or if it can be handled in a more traditional custody case.

So, clearly, there are a lot of reasons a private investigator can be helpful in the right situations. It also removes you directly from involvement in the conduct that a private investigator would be performing, like surveillance and photographs. If you are surveilling the other parent, taking photographs, and sitting outside their house, you’re treading into domestic violence or harassment territory. Private investigators don’t have those same concerns. So, in many cases, having them helps a great deal because it removes you from that type of exposure. 

Situations to Avoid When Compiling Evidence

As far as record keeping goes, you really have the flexibility to include what you want and exclude what you don’t. For example, avoid inappropriate conduct or behavior that you don’t want to explain to a judge, like with surveillance and photographs. Also be very careful about what you’re saying in the recorded conversations or messages with your ex. A lot of people will leave inappropriate messages that their ex can use against them. Just keep your composure and avoid outbursts. Don’t say something foolish and hurtful in a message just because you’re angry.

If you’ve tried to call out the other parent for their behavior and they come back with examples of your behavior that you don’t want brought up in court, that may be a conversation you don’t want to hold on to. But remember that it’s best to not make certain comments in the first place because it’s always possible that your ex is documenting conversations to help their custody case. I tell my clients to write messages and leave voicemails as if a judge is going to see and listen to everything – because it’s quite possible that they will. You don’t want to have to be explaining your inappropriate conduct when you’re trying to address something about your child that’s urgent. 

The Legality of Recording Conversations

Moving on to another significant issue about documentation: we have to talk about recording another person. New Jersey is considered a one party consent state, which means simply that you can record any conversation that you are a party to without the other person knowing or consenting, as long as that person is in New Jersey. Any other interception or recording of a conversation could be unlawful on state and federal levels, so you don’t want to do it. It’s very helpful evidence when you do it properly; it’s great proof since it’s the person verbally stating what was occurring at the moment it was happening. 

There are many applications that you can use to record and transcribe the conversations so that you can attach it to papers. You don’t always know if a judge is going to sit and watch a 30-minute video, or if they have the time. It’s also helpful to have on paper for possible appeal issues. There are many apps you can use for transcription. The one possible issue is that the transcription is not certified, so you can run into a problem from an admissibility standpoint. Just speak to your attorney about whether that will be an issue.

So, just know that if you are in New Jersey and can record your ex who is also in New Jersey, you can and should do it. You can always just discard the recording if it doesn’t prove fruitful. 

If you’d like assistance collecting and compiling evidence for your case, contact our men’s rights attorneys for child custody by calling 973-562-0100.

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