Text messages are often used in family court, and can be used as evidence towards custody and access. However, where the text messages have been used without permission, judges have split on whether or not they should be admissible. A judge’s analysis of admissibility generally turns on “probative value vs. prejudicial effect.” In other words, judges will determine if the usefulness of this evidence will outweigh the harm it may cause one of the parties. “Usefulness” is associated with the best interests of the child.
Unfortunately, it is impossible to know for sure if a judge will hold in favour of admitting illegally obtained messages. However, many judges start from an exclusionary standpoint, as they do not want to foster the inherent mistrust that is present in many family law matters. From this position, judges may decide that a litigant will have to show a very compelling reason to admit communications that were received improperly.