Family Law Case Review: Texts Admitted into Trial

Case: In Re The Paternity of B.B., R.B. v. T.J.
by Mike Kohlhaas, Bingham Greenebaum Doll

HELD: Trial court acted within its discretion when it admitted text messages purportedly exchanged between Mother and Father. [Note: Section I of this opinion is worth reading in its entirety as a discussion of the procedural considerations when attempting to introduce text messages into evidence.]

HELD: Trial court acted within its discretion when it granted Mother’s petition to modify custody.

Child was born to Mother, out of wedlock, in 2008. Mother and Father signed a paternity affidavit the following day. Both parents resided in Kokomo.

In 2010, Father filed a petition to establish paternity, and Mother moved for a support order. Following a hearing, the trial court issued an order of joint legal custody and equally shared parenting time.

Father subsequently relocated to Westfield, about 36 miles away. Without consulting Mother, Father withdrew Child from his school in Kokomo and enrolled him at a school in Westfield. Various contempt petitions were filed thereafter.  Mother also filed a petition to modify custody. After two hearings, the trial court issued an order modifying custody, giving Mother sole legal and primary physical custody of Child, subject to an enhanced IPTG parenting time schedule for Father. Father appealed.

Father first assigned error to the trial court’s admission into evidence of text messages that Mother purported were exchanged between the parties. The Court of Appeals noted that the admission or exclusion of evidence is reviewed on an abuse of discretion standard. Father argued that the exchange of text messages introduced by Mother appeared to be incomplete because they did not “flow logically” and that they “lack context.” At the hearing, Mother identified the text messages as being exchanged between her and Father, and Father had testified when presented with the text messages that he did not doubt they were his text messages. Mother also testified that the document she prepared containing the text messages was created by downloading the texts directly from her phone, and contained all of the parties’ text messages — not selective texts. Over Father’s objection, the trial court admitted the text messages on the basis that they were declarations of a party opponent.

In reviewing the admission of the text messages into evidence, the Court of Appeals stressed that Father was not taking the position that the text messages were not accurate, but that they were incomplete and selective. The Court considered it important that, at the hearing, Father never advanced a specific argument about where content was missing from the text messages, nor, despite having the opportunity, did Father attempt to present, from Father’s own phone, his version of the exchanged text messages. “We find that evidence was presented sufficient to support a finding that the Text Messages were what Mother claimed them to be, and that a sufficient foundation was laid for their admission . . . .” The trial court acted within its discretion by admitting the text messages into evidence.

On the change of custody issue, the Court of Appeals noted the deference afforded to trial courts in making custody decisions. The Court noted that modification of custody is appropriate only when doing so is in the best interests of the child, and that there has been a substantial change in one of the statutory factors set forth in Ind. Code 31-17-2-8. Father assigned error to many of the trial court’s findings of fact, which Father claimed were unsupported by the evidence. However, the Court of Appeals viewed Father’s argument as a request to reweigh the evidence. Many of these findings, coupled with other findings based upon the text messages, led to the trial court’s conclusions that Mother and Father no longer communicated effectively, that Child would do better with a primary residence (rather than equal time), and that Mother was the more likely of the two parents to be supportive of the non-custodial parent’s role in Child’s life. Having reviewed the record, the Court of Appeals concluded that the evidence presented to the trial court supported the trial court’s findings, and the findings supported the trial court’s conclusions. “We cannot say that the court’s findings or conclusions were clearly erroneous, and we conclude that the court did not abuse its discretion in granting Mother’s petition to modify custody.”

The trial court’s order was affirmed.

To view the text of this opinion in its entirety, click here: In Re The Paternity of B.B., R.B. v. T.J.


The Indiana Family Law Update is a free service provided by the Matrimonial Law Group of Bingham Greenebaum Doll, LLP. While significant efforts are made to ensure an accurate summary and reproduction of each opinion, readers are advised to verify all content and analysis with a traditional case law reporter before relying on the content and analysis offered here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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