Evidence is important in any case, including a Texas child-custody dispute. In a recent case, a father challenged a trial court’s divorce decree based on the exclusion of certain evidence at trial.
Mother’s Burner Phone Found with Explicit Messages
According to the appeals court’s opinion, the main issue at the divorce trial was the mother’s sexual encounters with other men. The father found a “burner” phone with texts between the mother and multiple men, photos of the men, and nude photos of the mother. The messages included references to sexual activity, indications of drug use, and requests for money. The father downloaded the content and used that information as the basis for an argument that the mother was a threat to the children’s safety and well-being.
The mother admitted to using the phone to communicate with men. She also admitted to meeting and sleeping with some of the men. She said some of them had given her money or gifts, but denied that they were in exchange for sex. She said she was currently in counseling and planned to continue.
Evidence Presented that Mother was Not a Threat to Children’s Well-Being
The psychologist who performed the parents’ psychological and child-custody evaluations testified the mother had a history of trauma that caused PTSD. She said the mother needed long-term therapy. She also testified the mother wanted to support a positive relationship between the children and their father, but that the father’s anger at the mother affected his ability to co-parent.
The children’s guardian ad litem did not see the mother as a threat to the children. She recommended the parents be named joint managing conservators, with the mother having the exclusive right to designate the children’s primary residence.
At the close of trial, the parties were named joint managing conservators with the mother having the exclusive right to designate the primary residence. Upset, the father appealed.
Did the Trial Court Erroneously Exclude Evidence of Mother’s Burner Phone?
He argued the court erred by excluding information from the mother’s burner phone. The trial court had excluded one of the father’s exhibits on the grounds it had not been timely produced. The appeals court had some question regarding whether the information contained in that exhibit may have also have been included in an exhibit that was admitted, but also found that the father had not shown any resultant harm, even if evidence was erroneously excluded. The exhibit that was admitted included “thousands of texts and messages. . .” Any additional texts contained in the excluded exhibit were cumulative of those in the admitted exhibit. The appeals court found the exclusion of such cumulative evidence “did not probably cause rendition of an improper judgment.”
The father also argued the trial court improperly excluded the cell phone itself from evidence. At issue at trial was whether the father planned to tell the children their mother was a prostitute and show them the phone. The father’s attorney asked him if he was “willing to tender [the phone] into evidence so it is no longer in [his] possession,” and he answered affirmatively. The mother objected, asking for the phone to be destroyed. She also argued that the contents of the phone were hearsay, and the father argued he was not offering it for the truth of the matter asserted.
The court sustained the mother’s objection, but took possession of the phone, indicating it would likely order it destroyed after exhaustion of all appeals. The father’s attorney indicated the father would also request destruction. After some discussion, the attorneys for both parties stipulated that it would be destroyed after the appeals were exhausted.
On appeal, the father argued the content of the texts were not hearsay because they were statements by the mother. The appeals court noted that the phone had not been offered for the truth of the matters asserted and should therefore not have been excluded on hearsay grounds.
The appeals court rejected the father’s argument that he sought to have the phone admitted for purposes of cross-examining witnesses on the issue of whether he had altered the contents. The court found he had not properly preserved the issue for appeal. Additionally, he did not object when the court said it would take possession of the phone to get it out of his possession as he requested. The court found this provided an alternate basis for the court’s ruling.
Exclusion of Burner Phone Probably Did Not Cause Improper Judgment
Generally, a party challenging an evidentiary ruling must show that the exclusion probably resulted in an improper judgment. The appeals court found that there was “an abundance of evidence” of the mother’s infidelity. The phone would not really add anything to the father’s allegations.
The father argued the phone would have raised questions into the mother’s credibility regarding drug use. The appeals noted there was evidence of two drug tests with negative results.
The appeals court also rejected the father’s argument that the messages could have led to a re-evaluation of the guardian ad litem’s testimony that he was too focused on his perception of “prostitution” by the mother. The downloaded content of the phone had been admitted into evidence, so the phone itself would not have affected the decision.
The appeals court noted that, despite the evidence of the mother’s sexual activity during the marriage, there was also testimony from a number of witnesses indicating she was currently a fit parent. The appeals court found nothing in the record showing that the exclusion of the phone resulted in an improper judgment, even if the exclusion was in error and affirmed the divorce decree.
Evidence is Important in Child-Custody Disputes – Hire Knowledgeable Attorneys
The evidence of infidelity and other behaviors in this case did not prevent the mother from being granted the exclusive right to determine the children’s primary residence, in part due to the “considerable” testimony of her current fitness as a parent. If you are facing a custody dispute, a knowledgeable Texas child custody attorney can work with you to determine the best evidence to present your case and attempt to keep improper evidence from being considered. Call McClure Law Group at 214.692.8200 to set up a consultation.