Be Smart with Your Phone


Look around any conference room, coffee shop or elevator and you will find almost everyone has their smart phone in hand or nearby. While these hand-held devices are still used for talking on the phone, they are also used for many other things including taking pictures, capturing video, sending text messages, making audio recordings, surfing the internet and checking social networking sites. Smart phones allow the user to immediately upload and disseminate all types of information. But proceed carefully, emails, text messages and other electronic communications are being used in family court, and if you are involved in dissolution or custody litigation think about the legal ramifications of how you use your smart phone. 

Recordings of a spouse who is verbally or physically abusive can be persuasive as the basis for a restraining order. However, the recordings could be illegal depending on how they are obtained. California Penal Code sections 630, et seq. makes it a crime to eavesdrop or record the audio of another without consent. Pursuant to Family Code section 2022, audio recordings obtained in violation of these sections are inadmissible.

In addition to potential criminal ramifications, openly recording your ex could also backfire. Video and audio recordings capture all sounds within the phone’s range. Playback of the recording reveals all voices including the individual holding the phone, who sometimes is heard encouraging or inciting the behavior.  

Pictures taken on a smart phone record much more than the image reflected on the screen. Most phones also record the date and where the phone is geographically when the picture is taken. Without a second thought, many parents send the picture via text or email directly from their phone to a doting grandparent, losing control of the image forever. The information recorded on your phone along with the photograph of your child, could confirm you had him or her outside of the counties where you were ordered to remain during the course of the litigation. 

In dissolution proceedings, the parties often maintain contact outside of their counsel's presence. Many parents use text messaging or email as a way to communicate about children while avoiding face to face contact.  Some people also use texting as a way to vent their anger, or express their feelings without in-person conflict.  But before hitting “send,” a user needs to review the message and determine how it will read if it is ever used as an exhibit to a court filing. This type of litigation can be quite emotional and when parties disagree, argue or insult each other electronically the communication could later be used against them. Threats or bullying via text can easily be forwarded to a party’s lawyer, printed and shared with the custody evaluator or filed with the court.  Agreements and promises made via email can be used as evidence of the other party’s intent or attitude about the other parent.  If you are involved in dissolution proceedings, or even just contemplating ending your marriage, it is a good idea to discuss with your attorney how and when you use your smart phone to communicate with the opposing party.

Deleting a picture, text or email is not always the right decision. Smart phones are just small computers and many keep a record of all electronic data, including when and where it was created and deleted.  Comprehensive discovery demands could require you provide this information to the other side, and if your phone confirms you intentionally deleted incriminating pictures, texts or emails, you could face sanctions for destroying evidence. 

Smart phones have made our lives easier in so many ways, but like all technology, careful consideration should be given to when and how you use them in the face of litigation.

Pallie Zambrano is an attorney with McManis Faulkner whose practice focuses on all aspects of family law. She relies on her experience in civil litigation to help clients with restraining orders, property division, and custody and support issues.  For more information, please visit



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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