Custody Case Evidence: How to Communicate with the Other Parent

Custody cases are often more evidence-driven than parents expect. While many people focus on major issues such as school performance, living arrangements, or allegations of misconduct, one of the most important forms of evidence in a custody case is much simpler: how the parents communicate with each other.

Text messages, emails, parenting app messages, and other written communications can quickly become exhibits in court. Judges frequently review months or even years of communication when determining what custody arrangement is in a child’s best interests. As a result, the way parents communicate with each other can significantly impact a custody case.

In Virginia, courts deciding custody and visitation issues are required to consider the “best interests of the child” factors set forth in Virginia Code § 20-124.3. Several of these factors directly relate to a parent’s ability to communicate and cooperate with the other parent, including:

• The role each parent has played and will play in the future, in the upbringing and care of the child; 
• The propensity of each parent to actively support the child’s contact and relationship with the other parent; and
• Each parent’s ability to cooperate in and resolve disputes regarding matters affecting the child.

Communication Is Evidence 

Many parents underestimate how quickly emotional communication can become harmful evidence. Judges routinely review communications containing insults, vulgar language, threats, repeated accusations, or attempts to exclude the other parent from important decisions involving the child. 

One helpful rule of thumb is simple: write every message as though a judge may eventually read it. Because one day, a judge very well might. 

Before Sending the Message: Spelling Check and Emotion Check 

Before sending any message, parents should conduct both a “spelling check” and an “emotion check.” In addition to ensuring a message is clear and understandable, parents should also consider whether the message is being driven by emotion rather than the child’s best interests.

Many co-parenting applications, including OurFamilyWizard, include tools designed to encourage more constructive communication, including tone-monitoring features that prompt users to reconsider inflammatory language before sending a message.

Even without a parenting application, taking a few minutes to step away and re-read a message before sending it can make a significant difference. A message written in anger may feel satisfying in the moment, but it can quickly become harmful evidence later. 

Put the Child First, Not the Conflict 

In many custody disputes, communication becomes less about co-parenting and more about “catching” the other parent making a mistake.

Parents may also begin approaching interactions like hunters searching for prey on a safari, constantly waiting for the next mistake, misstep, or inflammatory response they can use against each other.

Virginia courts generally look more favorably upon parents who demonstrate an ability to problem-solve, cooperate, and involve the other parent in important decisions affecting the child. Courts often pay close attention to how parents handle disagreements involving the child. 

What Should Parents Say Instead? 

The tone and wording of a message can significantly affect how it is perceived.  

For example, there is a substantial difference between sending a message that says: “you never care about our child unless it benefits you,” and sending a message that says: “I would like us to discuss a schedule that works best for [child]. Please let me know your availability so we can try to reach a solution.” Both messages may stem from the same frustration, but they create very different impressions regarding a parent’s willingness to cooperate.

The same principle applies when concerns arise about the child’s health, safety, or wellbeing. While situations involving immediate danger, abuse, or neglect may require immediate action, parents should often attempt to communicate concerns directly and calmly before escalating the situation.

For example, a parent concerned about a medical or safety issue may consider communicating: “I have concerns regarding [specific issue involving the child]. Please contact me by tomorrow so we can discuss this further. If we are unable to resolve this issue, I may need to consult [child’s] pediatrician or another appropriate professional.”

Approaching the situation this way helps keep the focus on the child’s wellbeing while encouraging both parents to communicate and remain involved before outside intervention becomes necessary. 

Keep the Other Parent Informed 

Keeping the other parent appropriately informed is also important. Medical appointments, school issues, extracurricular activities, schedule changes, and significant concerns involving the child should generally be communicated between the parents whenever reasonably appropriate.

Many parents also find shared calendars and parenting applications helpful for documenting schedules, exchanges, and important information involving the child. These tools can help reduce misunderstandings while also creating documentation if disputes later arise.

Intentionally withholding information or excluding the other parent from important decisions can sometimes create the appearance that a parent is unwilling to foster a healthy co-parenting relationship. Consistent and organized communication can help demonstrate a willingness to cooperate and prioritize the child’s best interests despite ongoing disagreements. 

Final Thoughts 

No parent always communicates perfectly, particularly during emotionally difficult custody disputes. However, parents who consistently communicate in a calm, respectful, and child-focused manner are often better equipped to navigate custody disputes.

In many cases, communication records provide the court with a direct window into how the parties interact, solve problems, and prioritize their child’s needs. When communicating with the other parent, it is important to remember that you are not only communicating with them; you may also be creating evidence for your custody case.

Cassidy Eason is a Pender & Coward attorney focusing her practice on family law and civil litigation matters.