Two questions, documentation and mediation

bebe11 · September 2013

I have kept soft copies of all emails from my ex and I have a ton of text messages on my phone. I always read that everyone says to document everything that goes on, but I am not sure what the best way to do this is. Print everything, put it in a binder, and do a organize it by date or subject matter? I feel like anyone could alter an email then print it, is this really something that holds up in court?

My next question is how do I prepare for mediation? I know already that it isn't going to acomplish anything. My ex is such an asshole that he would never agree to anything, which is why I am mentally preparing myself for court. He also has to run every. single. thing. past his girlfriend, so based on that I know we'll probably need more than one mediation session. Honestly, this guy will argue with me just to argue even if he knows he is wrong, so I am preparing for the worst.

Thanks!

CFjo2010 · September 2013

Documentation for us is filed by topic (visitation issues, PA issues, etc) and in chronological order, newest stuff on top. So in some areas of the binder, the same email and text shows up in multiple places. Emails can't really be altered unless you hit "reply". So what we generally do is print the last email in the chain that shows the ENTIRE conversation. In OC Courts, the Judges accept emails as evidence.

As for mediation, just write everything it is that you want addressed. Then go through and put your thoughts in some sort of order. List what you absolutely want, what you're willing to compromise on and your "absolutely nots". Have your list with you and just go down the line. Take notes while you're in mediation and at the end review everything out loud with the mediator to make sure you understood everything that was discussed. Also, on the OC Court website there is a downloadable "recommended schedule" you can print out and review. It gives suggested/recommended timeshares based on the age of the child. Review it and see if it follows what you're wanting, and take it with you to discuss. As for the GF thing: DH had me come to mediation with him (while we were engaged and again when we were married), but I wasn't in the room at first. He would come out to confer with me (he and I were trying to get all the kids on the same holiday schedule) and then go back in. The mediator had no issue with him doing this and actually encouraged it. If BD insists on running things past his GF, he can have her in the waiting area or call her while you're there.

And honestly, I would have OSC modification paperwork drawn up and ready to file that same day. Flat out say in mediation that if you guys are unable to come to agreements on things that you are prepared to file an OSC once you walk downstairs. This might light a fire under BD's ass to compromise a bit more, knowing he might have to go in front of a Judge.

EarthandFire · September 2013

I've wondered this too. For texts can't you get a transcript of texts from your provider? I'm sure it's an additional expense but these wouldn't be tampered with and you'd have a hard copy in case a phone dies. It also shows the number not a name. Does anyone know about this?

bebe11 · September 2013

Thank you both. I wish I could post some of the crap he has text and emailed me. It is so fricking ridiculous! I think I will for sure have the OSC ready to go.

CFjo2010 · September 2013

EarthandFire said:

I've wondered this too. For texts can't you get a transcript of texts from your provider? I'm sure it's an additional expense but these wouldn't be tampered with and you'd have a hard copy in case a phone dies. It also shows the number not a name. Does anyone know about this?

Most smartphones now have the capabilities to do screenshots. Do a screenshot of the text, and then have it printed as a photo. It will show enough to have in Court, and then it's up to the other party to deny that the copy you have provided is a true and correct copy. Judges accept this as evidence too. It's really difficult to get transcripts from cellphone companies. Most of them require a subpoena of some sort and it can be costly and take forever to get the transcripts.

MrsHetzel · September 2013

From my experience, documentation of emails and texts may go a long way in mediation, but 9/10 judges generally find then a nuisance and don't bother with them. That said, I do document everything but I've never needed any of it in court.

CFjo2010 · September 2013

MrsHetzel said:

From my experience, documentation of emails and texts may go a long way in mediation, but 9/10 judges generally find then a nuisance and don't bother with them. That said, I do document everything but I've never needed any of it in court.

If a Judge is not accepting emails and/or texts as evidence, then they are violating civil rights of the party submitting them, and opening themselves up for appeals. Federal Evidence Code provides that any form of electronic communication is considered evidence. This includes emails, texts, voicemails, FB posts, etc.

Hopeforthebest · September 2013

I was always of the mindset: Better to have it and not need it, than Need it and not have it.

We have a TON of stuff going back 5 years. It is daunting. But a couple times I've had to pull out an email for reference (not for court in front of judge) for the attorney.

EarthandFire · September 2013

jobalchak said:
Most smartphones now have the capabilities to do screenshots. Do a screenshot of the text, and then have it printed as a photo. It will show enough to have in Court, and then it's up to the other party to deny that the copy you have provided is a true and correct copy. Judges accept this as evidence too. It's really difficult to get transcripts from cellphone companies. Most of them require a subpoena of some sort and it can be costly and take forever to get the transcripts.

I was under the impression this was something you could pay for to get monthly. Not back records but going forward. I haven't asked but thought I had seen it as an option. It seems wrong you can't get a record of what texts are sent to the phone you pay for for the preceding month. Not years in the past, just a month at a time.

bebe11 · September 2013

I think the text message log from the cell phone companies might vary. I know some people can get emails of their text, but with AT&T they won't give you a printed out log of your text messages. Ok, so it looks like I have a full afternoon of printing and organizing emails.

twister22 · September 2013

andrea99 said:

As far as documentation, we have a notebook we organize by date. Some texts/emails/calendar notes lines up by date, so it's easier. We haven't had to use them yet, so I'm not sure how well they hold up. I've also wondered about that, considering I could change my name in DH's phone to BM's name and send nasty texts for him to screenshot lol. That would be awful, of course, but you get what I'm saying. I've also heard from a lawyer friend that any notes made by hand should be done with different pens/pencils each time so they don't look like you sat down and wrote them all at once.

For mediation, DH and BM wanted me and her H there. The mediator told us at the beginning that if her H or I looked like we were getting in the way, he would flat out tell us to leave. DH gets so wound up about these things, and I'm the more organized one, so it was good for me to be with him. If BM had said she wasn't comfortable with it, she had the right to ask me to leave. I'm not sure if you'd be ok with his GF being there, but it might be an option if you think it would help things move more quickly. I know that having us in the room also helped keep DH and BM from getting ugly, because BM does not like to look bad in front of anyone besides DH.

I have a dumb phone, so I take an actual picture of my phone with the text up. And, whenever I do that, I delete BD as a "contact" on my phone, that way the text says "Sent from xxx-xxx-xxxx" or "Received from xxx-xxx-xxxx"

I would recommend doing that @andrea99 so that it holds up better.

twister22 · September 2013

jobalchak said:

Documentation for us is filed by topic (visitation issues, PA issues, etc) and in chronological order, newest stuff on top. So in some areas of the binder, the same email and text shows up in multiple places. Emails can't really be altered unless you hit "reply". So what we generally do is print the last email in the chain that shows the ENTIRE conversation. In OC Courts, the Judges accept emails as evidence.

As for mediation, just write everything it is that you want addressed. Then go through and put your thoughts in some sort of order. List what you absolutely want, what you're willing to compromise on and your "absolutely nots". Have your list with you and just go down the line. Take notes while you're in mediation and at the end review everything out loud with the mediator to make sure you understood everything that was discussed. Also, on the OC Court website there is a downloadable "recommended schedule" you can print out and review. It gives suggested/recommended timeshares based on the age of the child. Review it and see if it follows what you're wanting, and take it with you to discuss. As for the GF thing: DH had me come to mediation with him (while we were engaged and again when we were married), but I wasn't in the room at first. He would come out to confer with me (he and I were trying to get all the kids on the same holiday schedule) and then go back in. The mediator had no issue with him doing this and actually encouraged it. If BD insists on running things past his GF, he can have her in the waiting area or call her while you're there.

And honestly, I would have OSC modification paperwork drawn up and ready to file that same day. Flat out say in mediation that if you guys are unable to come to agreements on things that you are prepared to file an OSC once you walk downstairs. This might light a fire under BD's ass to compromise a bit more, knowing he might have to go in front of a Judge.

If it were me, I would tell BD that GF can be in the waiting room for him to run things past. Personally, I wouldn't want the GF in the room because I think she may get in the way of things. But having her in the waiting room for BD to run things by at intermittent periods may actually speed things up and cause for only one mediation.

bebe11 · September 2013

I confirmed with the court yesterday that ex never confirmed our mediation appointment, so I went down today and filed the paperwork for an order to attend mediation, with a court hearing the week after. Now to get him served and wait until the appointment.

So about serving, the lady just said anyone over 18, so could my husband serve him?

Hopeforthebest · September 2013

I would NOT recommend sending your DH. Use someone not known to either party. No probability of false accusations.

bebe11 · September 2013

Hopeforthebest said:

I would NOT recommend sending your DH. Use someone not known to either party. No probability of false accusations.

True. I will see if I can get a friend from work to do it for me. Thanks

Amanda88 · September 2013

jobalchak said:

MrsHetzel said:

From my experience, documentation of emails and texts may go a long way in mediation, but 9/10 judges generally find then a nuisance and don't bother with them. That said, I do document everything but I've never needed any of it in court.

If a Judge is not accepting emails and/or texts as evidence, then they are violating civil rights of the party submitting them, and opening themselves up for appeals. Federal Evidence Code provides that any form of electronic communication is considered evidence. This includes emails, texts, voicemails, FB posts, etc.

@jobalchak Can you post some more information on this? When we went to court in 2012 the judge did not look at anything. Texts, emails, facebook screen shots, etc. He just said it was all heresy, and refused. When we go back, DH and I want to be able to appeal should this happen again.

Nineoceans · September 2013

Amanda88 said:

jobalchak said:

MrsHetzel said:

From my experience, documentation of emails and texts may go a long way in mediation, but 9/10 judges generally find then a nuisance and don't bother with them. That said, I do document everything but I've never needed any of it in court.

If a Judge is not accepting emails and/or texts as evidence, then they are violating civil rights of the party submitting them, and opening themselves up for appeals. Federal Evidence Code provides that any form of electronic communication is considered evidence. This includes emails, texts, voicemails, FB posts, etc.

@jobalchak Can you post some more information on this? When we went to court in 2012 the judge did not look at anything. Texts, emails, facebook screen shots, etc. He just said it was all heresy, and refused. When we go back, DH and I want to be able to appeal should this happen again.

This happened to us 40+ pages of texts and emails from people reporting BM was so bad on drugs she was about to kill herself and she wasn't feeding or caring for SS were thrown out as heresay. Even messages from Bm's brother.

The physical witnesses who would have attended were threatened by Bm's attorney of losing custody of their own kids for doing drugs with her so they did not have the courage to show up. We had to settle.

bebe11 · September 2013

I am currious what would be considered proof then. I know all courts are probably different. But it seems like emails and other forms of communication would hold up.

MrsHetzel · September 2013

Nineoceans said:

Amanda88 said:

jobalchak said:

MrsHetzel said:

From my experience, documentation of emails and texts may go a long way in mediation, but 9/10 judges generally find then a nuisance and don't bother with them. That said, I do document everything but I've never needed any of it in court.

If a Judge is not accepting emails and/or texts as evidence, then they are violating civil rights of the party submitting them, and opening themselves up for appeals. Federal Evidence Code provides that any form of electronic communication is considered evidence. This includes emails, texts, voicemails, FB posts, etc.

@jobalchak Can you post some more information on this? When we went to court in 2012 the judge did not look at anything. Texts, emails, facebook screen shots, etc. He just said it was all heresy, and refused. When we go back, DH and I want to be able to appeal should this happen again.

This happened to us 40+ pages of texts and emails from people reporting BM was so bad on drugs she was about to kill herself and she wasn't feeding or caring for SS were thrown out as heresay. Even messages from Bm's brother.

The physical witnesses who would have attended were threatened by Bm's attorney of losing custody of their own kids for doing drugs with her so they did not have the courage to show up. We had to settle.

All I'm sayin'...

Nineoceans · September 2013

bebe11 said:
I am currious what would be considered proof then. I know all courts are probably different. But it seems like emails and other forms of communication would hold up.

My understanding and I am NOT an attorney. An email between you and X is fine and admissable. He is there, he can "testify" regarding the validity of the email or the content. An email or text between a third party and you is heresay unless they're there as a witness.

HOWEVER our judge really didn't give an F, like literally at all, so she threw it all out and just went off of in person testimony. I think most judges honestly don't give an F and will just go based on what the guardian ad litem/social worker says or they will just split it completely down the middle. So best to ask for the moon and settle for a lot less

CFjo2010 · September 2013

@MrsHetzel google State Evidence Code and the Section will come up. For me in CA it's Evidence Code Section 250: "Writing" means handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored."

Each State has their own specific Evidence Code, and that's what you would cite when presenting emails, texts, etc.

MrsHetzel · September 2013

@Jobalchak, I know you should be able to present everything we've mentioned as evidence and I think it won't be much longer that judges can brush aside the presence Of social media, it just seems the status quo as of right now is judges don't have "time" for Facebook squabbling.

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