Child Custody, Visitation & Relocation

FATHER GRANTED PRIMARY PHYSICAL CUSTODY AFTER FATHER PRESENTED EVIDENCE OF TEXT MESSAGES, CHAT LOGS AND OTHER ELECTRONIC COMMUNICATION OF MOTHER

In this custody modification matter, evidence of electronic communications was properly authenticated. The court denied mother’s motion for a new trial.

The parties had shared custody of their two minor children. In November 2019, mother filed a complaint to modify custody. She asked the court to grant her primary physical custody. Father later indicated that he also wanted to have primary physical custody of the children. Awarding custody to father required the children to move out of state.

At trial in August 2020, father presented evidence of text messages, chat logs and other electronic communications between mother and various their parties. Father also presented some photographs which showed mother using drugs. In the electronic communications, mother mentioned drug usage. After the trial, the court granted father primary physical custody of the children. They moved with him to West Virginia.

Mother filed a motion for reconsideration and a new trial. She argued that the evidence relating to electronic communications was not properly authenticated, because these exhibits were not date stamped and included hearsay. Mother also insisted that the photographs were unclear about the items depicted. According to mother, she was entitled to a new trial because her prior attorney did not offer for mother to undergo a drug test at the time of trial.

Text messages could be authenticated by testimony of either the sender or the recipient. Mother admitted at trial that she either sent or received the electronic communications at issue. She also identified herself in the photographs. The court noted that most of these exhibits contained date stamps or the evidence placed their occurrence during the COVID-19 pandemic, which meant that the conversations could only have taken place in March 2020. Mother was also very evasive in answering questions about her drug usage. The court found that her explanations were not credible.

Despite mother’s argument that she would have been willing to submit to a drug test on the day of trial, the court stated that it was not concerned so much about whether mother was intoxicated on a particular day. Rather the focus was whether mother’s drug usage prior to trial and how it affected her ability to care for the children. The court concluded that mother failed to set forth circumstances warranting a new trial, so it denied her motion.

REF: Digests of Recent Opinions, Pennsylvania Law Weekly, 43 PLW 1003, Tuesday, November 3, 2020, Walther v. Walther, PICS Case No. 20-1095 (C.P. Lycoming Sept. 28, 2020)

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