By: Sarah T. McCain
In Part 1 of this article, I discussed the positives of good communication between spouses during a dissolution of marriage or a custody case. While a lot can be accomplished through maintaining amicable communications with the other party, it is important to know when communications have turned for the worse and when to speak up against those inappropriate communications. Unfortunately, often during any Colorado family law case, communication can take a negative turn, causing more anxiety and conflict for the parties. I often tell clients that they may see the worst version of the other party while the case is pending. It’s important to be prepared in terms of how to handle negative communications for purposes of protecting both your interests in your case and your sanity.
First, name calling and obscenities are never appropriate, especially in those cases involving custody or visitation. Upon receipt of such negative messages, it is easy to fall into the trap of wanting to respond in kind. It’s important to remain level headed and to not respond in a like manner. Often, these nasty messages do not contain vital information or requests and, therefore, do not require a response. If a response is necessary, it is important to remember that all communications are potential exhibits which the court/judge might see at trial. As such, it may be necessary to respond to those items that are necessary to respond to and to then simply ignore the insults and intimidation. This can turn into a complicated situation wherein it is best to have a your attorney determine when, and how, best to respond to what may be deemed inappropriate communication. If communications get to hostile, your attorney can always get involved, thereby ceasing the direct insults or hostile communications. I’m always willing and ready to step in when needed, though hope to keep costs down by staying out of the fray.
One should keep in mind that though I am suggesting that you not respond in some situations, I am not suggesting that you simply sit back and allow the other party to harass and intimidate. Often it is best to respond by stating that you do not appreciate the inappropriate communication and request that it stop immediately. If the other party refuses to stop communicating in a hostile or inappropriate manner, you do have the option of alerting the court to such interactions and requesting an order that it stop or that communication be made in a specified manner, such as using a service like “talking parents.” There are many services that provide communication assistance in divorce or custody cases and courts will often look to relegating all communications to this type of a site, thereby keeping a log of interactions for anyone, including the court, to see down the road. Not only do these types of sites have an amazing benefit of curtailing ugly communication, but they are also a useful tool for keeping detailed records, including potentially for future court preparation or for an expert, such as a Child and Family Investigator to review.
As indicated above, a negative communication can be used in court against the party making it. While I tell my clients to preserve emails and text messages they believe might be helpful, particularly when dealing with custody or visitation (parenting time) matters, I am also compelled to remind then that anything they say (written or oral) can be used against them. When it comes time for trial, presenting written communications to the court for admission as evidence must be done properly so as to comply with evidentiary rules. Failure to properly present written communications, such as emails or text messages, may render them inadmissible, meaning the court won’t see or consider them at hearing. There are some nuances to keep in mind related to written communications. Full communications or chains must be provided. These should not be edited in any manner, meaning that you cannot present only one side of a communication. The conversation on a certain date and time must be presented in its entirety for the Court to even consider the document.
I haven’t really touched on in person communication in this posting. Briefly, one should keep in mind that in person communications should be appropriate and businesslike, particularly in front of the children. If faces to face communication is needed and their is even a scintilla of danger or the potential for a false allegation, it is better to meet in a public place or not at all.
Finally, its recommended that you consult with an attorney at any time you feel that communications between you and the other party need to be addressed. If communications are good, those conversations can be turned into your final agreement, with the appropriate language provided by the attorney. If the communications are bad, an attorney can assist you in traversing the difficult steps of whether you should respond and how you should do it. In any divorce or custody case, what a person says truly does matter. Think before you talk.