Preserving Evidence:
How to not lose your case before it starts
In any court case, including divorces and custody actions in Kentucky, a Court can only consider the evidence that has been presented before it. A lack of evidence can inhibit you from effectively proving your case to a Court. The testimony of parties and other witnesses are one form of evidence a Court can consider. However, when testimony between two people conflicts in a classic “he said/she said” situation, other evidence supporting your position will make a stronger case to a Court. This article will examine some common forms of evidence that might be considered in a Kentucky divorce or custody case, and provide some insight on how to best ensure that you preserve the evidence in a manner that can be utilized in your case.
First, it is important to note that not all documents, statements, or other evidence can be presented to a Court in every case. Kentucky Rules of Evidence dictate what evidence may be admissible for a Court to consider. Whether it is because of hearsay rules, authentication requirements, limits on character evidence, or other rules, you may have information or documents that appear helpful to your case but are not admissible in Court. It is important to speak with an attorney to understand what potential evidence you have that could be admitted and what you might need to do to ensure your evidence is admissible.
Text messages, emails, social media messages
Communications in the form of texts, emails, or social media messages between parties in a Court case are a common form of evidence, particularly between spouses in a divorce action and between parents in a custody action. Hearsay rules may prohibit the inclusion of such evidence in many circumstances, since the hearsay rules serve to exclude statements made outside of court if they are offered as evidence that the statement was true. However, evidence which may otherwise be excluded as hearsay can be admissible if one of the exceptions to the rules of hearsay applies. One such exception includes statements made by a party to a case when it is offered against that party. For example, in a divorce, this exception could allow messages between spouses (who are the parties to a divorce action) to be admissible evidence when one spouse is seeking to use the message as an exhibit against the other spouse.
Preserving these communications is crucial. It is also crucial that you preserve the details around the messages, including dates, times and who the messages are to and from. These details are as important to maintain as the messages themselves, whether it’s emails, social media messages, or texts.
If you have texts on your phone you think might be useful to your case, here are a few tips on how you might preserve them:
• Take Screenshots of the texts so you have a picture of the text messages exactly as it appears on your phone. You may want to print off the pictures and want those printed pictures to appear exactly as the messages on your phone do.
• Ensure that the date of the text messages is visible in the screenshot. If you have multiple messages from the date, have images of each text from the same day saved in chronological order, even if only one text is going to be presented as evidence.
• Ensure that the phone number or contact of whom the texts are with is also visible in the screenshot.
• If you have several messages or an entire conversation, consider using an App or software that permits you to extract the messages into a printable PDF. There are several apps that can do this.
• Back up your messages and don’t delete them.
Health or School Records
In divorce and custody or parenting time actions, health records or records from children’s schools are often used as evidence. Before these things can be admitted to the Court, the Court will want to know that the records are authentic and not something that has been fabricated or manipulated. One way a party can ensure these documents are admissible is to call the records custodian for the health care provider or school as a witness to testify that the records that are being offered are true and correct copies. However, calling a witness for this purpose can be costly, and they may not want to cooperate. Another more efficient method of ensuring your records can be admitted without calling this witness to testify is to have those records certified by the records custodian.
In order to have the records certified in an appropriate manner, a record custodian for the school or health care provider can sign a document under oath in front of a notary affirming that record in question was:
1. Created at about the same time the event happened, and by someone who knew what they were recording (or who got the information from someone who did);
2. Kept as part of the business’s normal, day-to-day operations.; and
3. Making this kind of record was something the business routinely does, not a one-time event or unusual action.
See KRE Rule 902. Having this certification executed with the records will help demonstrate to the Court that the records presented as evidence are true and accurate copies of the records maintained by the healthcare provider or school. Kentucky Rules of Evidence require that when a party intends to introduce certified records they must notify the other party of the records and allow them to inspect them.
In addition to school and health records, there are other records relevant to your case which may also need to be certified in this manner: Child Protective Service records, criminal history and background checks, and bank statements are other examples of records that may need to be certified in this manner.
Income and financial transactions
In divorce or child support actions, evidence around income and other financial information may be necessary to present as evidence. Financial documents can be relevant evidence in a variety of different contexts, including without limitation proving living expenses for maintenance in a divorce, proving income for child support, tracing non-marital claims, proving responsibility for debts, and many other contexts. Further, Kentucky law requires parties to exchange Verified Financial Disclosures in divorce actions. With the financial disclosure, you will be required to provide your three most recent paystubs, and your most recent tax returns and other records proving your assets. However, tax returns from previous years and prior paystubs may also be relevant to your case.
Additionally, it may be necessary to present proof of payment. For example, if you are paying childcare costs in a child support case or want to prove a payment you made in contribution to a marital asset, or trace your non-marital interest in an asset. It is important that any expenses or financial transactions that might be relevant to your case can be proven in your records. If you have a financial transaction that might need to be used in Court, ensure your records reflect it. Keep receipts of payments you’ve made and invoices you’ve received, including electronic and/or emailed receipts and invoices. Cash payments may be difficult to trace; when possible, pay from a bank account or use a check so that the transaction can be reflected in your bank records.
RECORDINGS
Obtaining Records
Often, figuring out how to get the records you may want to use as evidence can be a challenge, particularly when they are not records you currently have in your possession. Discussing how to obtain records with your attorney is nearly as important discussing what records you may use as evidence. It is important to discuss with your attorney a plan for obtaining records you may need in your case. In some cases, your attorney may be able to issue a Subpoena Duces Tecum to a third party compelling them to produce the records that have been requested under the authority of the Court. Open record requests are another means of obtaining records. Government agencies and public institutions are subject to open records laws and may be required produce certain records they possess when a proper open records request has been made. For example, records from a CPS investigation or criminal records may be obtained through a proper request. However, there are limits as to who may be entitled to obtain such records. For example, only authorized individuals such as the child’s parents or the attorneys may be able to obtain records from a CPS investigation.
The evidence types discussed above are just some of the examples that might be necessary in your case. Each case has different needs and there are different rules that may affect whether your evidence is admissible and how. Taking steps to preserve your evidence is key to ensure you are in the best position you can be to prove your case to a Court. If you have documents and records you think may be evidence in your legal case, it is important to discuss what they are and how to properly obtain them with an experienced attorney who can help ensure your evidence is admissible in your case.
We’re here for you
Going through a divorce or custody matter can feel overwhelming, and it’s not always clear what will matter later or what steps you should be taking right now. You don’t have to navigate those questions on your own. If you’re unsure about what documents, messages, records to keep, or how to protect information that may be important to your case, an experienced attorney can help guide you through that process. We’re here to answer questions, talk through your situation, and help you feel more confident about the next steps ahead.
Written by: Joe Denger
Based in Kentucky, Joe Denger is a family law attorney at Brown Carrington focusing on divorce, custody, and child support cases. His background in psychology gives him a unique perspective on the emotional challenges families face, while his experience in the courtroom ensures strong, strategic representation. Joe takes pride in providing clear communication and steady support, guiding his clients through life’s most difficult moments with empathy and confidence.
Learn more about Joe here.
Edited by: Catherine Pierce
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