Explore the Specifics of Using Cell Phone Records in Your Family Law Case

Learn About Admissibility Criteria, Subpoena Procedures, and More Regarding Cell Phone Data in Family Law Cases with the Help of Our Attorneys in NJ

Cell phones have become an extension of many people—a device that is often not far from arm’s length. Cell phones house an enormous amount of personal information. Text messages, in particular, can reveal so much about an individual’s thoughts and actions. The information stored within these devices can, therefore, play a critical role in family law cases, especially those involving harassment, fault-based divorce proceedings, custody matters, and petitions for restraining orders.

However, whether you seek to admit another person’s cell phone records or your own records are subpoenaed, it is important to understand the rules governing the admission of cell phone records and the impact this type of evidence can have on a family law case.

Critical Role of Cell Phone Records in Different Family Law Matters in NJ

A variety of types of cell phone records, including text messages, audio recordings, and video recordings, can be admitted to support or defend a party’s position in a family law case. In cases involving child custody or child visitation, the court’s main concern is the best interest of the child. If a court finds that one parent is alienating the other, is unlikely to comply with court custody or visitation orders, or may interfere with the parental or visitation rights of another parent, then the court will be less likely to grant primary custody to that parent. Evidence that one parent has sent messages that indicate an attempt to alienate that parent may be relevant to a child custody case. Furthermore, any evidence that indicates that one parent has engaged in conduct that would create an unsafe environment for a child would also be relevant.

Cell phone records are also important in divorce cases. In New Jersey, a spouse can file for divorce on no-fault grounds if there are irreconcilable differences between the spouses. However, they can also file on fault-based grounds, including substance abuse, cruelty, adultery, or abandonment. If a spouse files on one of these fault-based grounds, they must present sufficient evidence to support their claim. Submitting cell phone records that demonstrate evidence of the fault-based ground may be one way for the filing spouse to meet their burden of proof.

Domestic violence cases are one of the most serious family law matters that may be supported by cell phone records. In New Jersey, a victim of domestic violence may seek a protective order against their abuser and submit cell phone records as evidence of harassment.

The Admissibility of Cell Phone Records in Family Law Cases

Although cell phone records may be an admissible type of evidence in family law cases, not all cell phone records will be admitted in every case. The admissibility of cell phone records is governed by the New Jersey Rules of Evidence. The elements impacting the admissibility of cell phone records in a particular case include relevance, reliability or authenticity, hearsay issues, and potential privilege issues.

For a piece of evidence to be relevant, it must have a tendency to make a consequential fact more or less probable. Even if a piece of evidence is relevant, it must then be authenticated before it can be admitted into the court record. Cell phone records can be authenticated by direct or circumstantial evidence, like the testimony of a witness or providing the known phone number of the author of a text message or a call to the individual.

Getting Phone Records Access Via Subpoenas

In your family law case, you may wish to request the cell phone records of your spouse, child’s parent, the individual against whom you seek a restraining order or another individual. You can do this during the discovery phase of your case by serving a subpoena to the cell phone service provider. The process of obtaining a subpoena begins by preparing a subpoena request to the court. Once you obtain a subpoena order in New Jersey, you must serve it on the cell phone service provider. Since this company is not part of the family law case, this is called a third party subpoena.

Recommended Steps When Your Personal Cell Phone Records Are Subpoenaed

If your cell phone records are subpoenaed, and you do not agree that the records are admissible into evidence for some reason, then you can formally object to the admission of the cell phone records, but you must have grounds for your objection. Grounds for objecting to the admission of cell phone records may include lack of reliance, where the individual whose records are at issue argues that there is no information contained in the cell phone records that has any tendency to make a fact of consequence more or less probable.

The cell phone owner may also object to the admission of the records on the ground that the information is protected by privilege, which may be an attorney-client relationship, doctor-patient relationship, or spousal privilege. It is important to clarify that while spousal privilege may be relevant in certain situations, it does not allow one spouse to necessarily bar the admission of any communications with a spouse.

Concerns about Using Cell Phone Records in Your Family Matter? Contact Our Brick or Sea Girt Offices to Speak with One of Our Attorneys

Understanding how to subpoena cell phone records and/or how to object to the admission of cell phone records in your family law case requires expert legal knowledge. These records have the potential to significantly change the outcome of your case, for better or worse. It can be a detriment if you do not know how to properly obtain this evidence and make it a part of the court record or how to keep it out of the court record.

Our team of experienced family law attorneys at Bronzino Law Firm is well-versed in the process of subpoenaing cell phone records for clients and/or objecting to the admission of evidence based on proper grounds. We are skilled at arguing the relevance or lack therefore of these records to best serve the interests of our clients in Belmar, Ocean Township, Neptune, Colts Neck, Beachwood, Manchester, Lacey, and other communities throughout Monmouth and Ocean County. Contact us at (732) 812-3102 or by filling out the online contact form to get a free confidential consultation.