santa cruz family law bob derber
May 2019

Communicating with the Ex

Bob Derber local attorney

By Bob Derber

When dealing with an ex (or to-be

ex), always:

1. Be polite and civil;

2. Communicate in writing;

3. Discuss only the children, support

or property, and

4. Never delete past communications

santa cruz family law bob derber

This should be obvious, but often it is not. Emails and text messages can end up in court when custody battles erupt. Matters may become strained at any time, especially when the children are involved. Perhaps a parent wants to move away, or a child wants to join in an activity you cannot agree upon.

Disagreements about the children often spill over into other areas. You may be a strong parent and a good person, but the judge will only see what is in your communications and your declaration. Your writings show the court your posture in co-parenting decisions. You want the court to see you are the responsible person who will do what it takes to help children thrive, even if your ex is not.

Item 1 - Be polite and civil.

Your text messages or Facebook IM’s should not be considered never private. Your ex may even be ‘fishing’: trying to get a text from you that makes you look unreasonable or mean-spirited.

Your custody is compromised if your texts include name-calling, uncivil comments, or angry language. I have seen all these ends up as exhibits to a judge in a request to change custody or parent-time. Assume a judge will read ANY text you send to your ex or the children. Make them a positive example of your co-parenting skills.

Item 2 - Always communicate in writing.

It will be your texts that show your ex does not participate in a child’s events even after you have informed them of these. Without them you may face allegations that you hid the event from them. Are their concern over a child’s academic progress? Your email to the ex looking for help in addressing this will be critical if you need a court’s assistance to enroll the child in a remedial program or are asking for half the program’s costs.

Always communicate in writing. This will show your inclusion of the ex in important decisions concerning the children and will help clarify any misunderstandings up front. You can expect that if there is no writing the ex may claim they never knew!

Item 3 - Discuss only the children, support or property

You may have a positive relationship with the ex, and this is great for the children. But keep your conversation topics focused on co-parenting and divorce-related topics.

In one matter, an ex texted continually about their current relationship – including excessive drinking by the new companion in the home. When she later wanted more time with the children, these texts came back to haunt her in court. Why should a judge give additional time to a parent who provides an unsafe or challenging home environment for the children?

Item 4 - Never delete past communications.

Your texts ‘live’ forever. They are on both phones and may be retrieved years later. If your messages follow the above rules, this will not be a problem. But if they are contentious or address matters you wish others not know, don’t delete them thinking they are really ‘gone.’

Even deleted messages can often be retrieved from a computer or phone. The message may still exist but only be flagged for deletion. When your ex has a text but you do not, a court may think you are hiding relevant information, and you can imagine how the judge will respond.

If communications stray from these guidelines or becoming excessive, you might ask the ex (or the court) that you both only communicate via a messaging service specifically designed for parental communications. Our courts typically require Our Family Wizard (OFW) (, a $100 annual service that logs all communications between parents (other than emergency messages).

With OFW, the messages are available for court review. The service also has several useful tools for parents where communication is difficult.

These principals should guide you in your social-media presence as well. Your Facebook postings, even those only seen by your ‘Friends’, may also show up in court. Your ex may still access these postings through others. Never disparage your ex or complain about bad conduct on social media. Stay positive, or avoid social media altogether. Your postings can (and probably will) be misconstrued or mischaracterized if you become involved in a custodial fight.

From the Marigonda Bench

Our Family Court orders customarily include that communications between parents be civil and respectful. This is a primary rule. Name-calling and swearing are never appropriate. They only increase existing conflict which is harmful to the children. We take compliance with this order very seriously.

Bob Derber is a local attorney practicing family law. He served as a State appointed Guardian ad Litem in high conflict matters in the State of Utah before returning to his home in Santa Cruz four years ago. Your situation may differ and the above is not intended to be legal advice to you in your own custodial matters. Be sure to consult with your family law attorney as appropriate if you need help in this area. Have questions for him to answer? Send them to [email protected]

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