In the third of our “How Digital Forensics Can Help” Series, we’ll seek to answer some common questions about what can and cannot be available in divorce and child custody cases. These are routinely some of the most emotionally-driven cases, no doubt because of many factors involved including separation of assets, child custody negotiations and the underlying sense of betrayal that comes from sharing your life with someone and having that changed drastically and perhaps without warning. Don’t misunderstand us, digital forensic capabilities often will not alleviate any of these highly tumultuous circumstances. However, we can help answer many questions that can hopefully bring these situations to an amicable resolution faster and help both parties move on with their lives.
What evidence is relevant in a divorce?
We routinely get asked the question about how to obtain the device(s) in question in any number of cases, divorce included. Please bear in mind, I’m not an attorney, nor do I fully understand the legal nuances of what devices and/or evidence may or may not be legally available to either party in divorce proceedings. Experience has shown us where there’s a will, there’s a way. Often the competency and tenacity of your attorney will dictate what course your divorce proceedings may take, but this article is not only designed for individual parties involved in divorce cases, but also to help the attorneys know what we can do to help in these cases.
Recently, we’ve seen circumstances where a Motion to Compel has been issued by the court, which forces the opposing party in a divorce proceeding to produce their computer and/or mobile device for forensic examination. The motions are very specifically worded and admonish the respondent of the motion to refrain from deleting any data prior to turning the device(s) over to the forensic examiner. They also can include language to provide the examiner with pass codes to examine the device(s) more freely. This type of tactic is likely the best-case scenario for your digital forensic expert. By granting the Motion to Compel, the Court has given us full permission to conduct a digital forensic examination on whichever devices are named in the motion. Routinely, the examination will take the tactic of proving or disproving some sort of infidelity. So what information is potentially available and what helps us do this? We’ll break it down by device type:
Mobile Devices (Cell phones, smart phones & tablets)
- Text message history: This can be between the opposing party and a suspected paramour or intimate conversations with close friends regarding potential infidelity or other malfeasance. Always bear in mind that text messages may be stored in more than one area of the device, such as messaging apps or games.
- Internet history: People incorporate behaviors with regard to their internet browsing history based upon individual interest. Was the opposing party engaged in some online dating activity? Did they attempt to contact others via the internet to facilitate this? All of this evidence is key to answering these questions.
- Email history: Depending on the type of device, we can recover email history dating as far back as you can imagine. Special consideration should be made, however, to restrict access to privileged material that may be contained in emails.
- Mobile Apps: Mobile devices are at virtually everyone’s fingertips in the digital age. As such, the apps they use can often help us identify behaviors and provide concrete evidence that something may be afoot. Even if we can’t examine the specific app data due to encryption or other security measures, the mere existence of some apps may indicate some questionable behavior.
Computers (laptop, desktop, etc.)
- Internet history & emails: Think of the computer as a graduated version of the mobile device. Chances are much of the same information that may be contained on the mobile device is also on the computer, which helps with validation of this evidence. Also consider the importance of shopping history, pornography and other items that may help paint the overall picture.
- Documents: Personal documents, such as financial records, may be of particular importance in divorce cases. Is there hidden money? Do both parties know what the assets are and where they are located? Questions like these may be answered and help lead to a more equitable distribution and faster conclusion.
Obtaining the truth is at the heart of every case we investigate. Routinely, we will engage clients who have strong suspicions about activities their significant other may be engaged in and we find little to no evidence validating these suspicions. Can your questions be mostly (or completely) answered with a digital forensic examination? The answer is maybe. We have adopted a disclaimer on our engagement paperwork that states, in part, that we do not guarantee results. A client’s suspicion of what may or may not be going on with their significant other is not evidence. We acquire, analyze and report the evidence that is before us. We do not engage in conjecture or speculation, which is sometimes difficult to understand when the emotional stakes are so high.
When engaging a digital forensic expert in your divorce and/or child custody case, it is important to remember that in forensics, we seek to prove or disprove a hypothesis based upon the evidence. We may very well uncover the proverbial “smoking gun” in your case, which will settle your matter in a very cut-and-dried manner. However, it is important for both clients and attorneys alike to realize that the opposite is also possible and you may be left with more questions.
You have our guarantee that we will leave no digital “stone” unturned and we will strive to work with both clients and attorneys to ensure the most comprehensive view of the evidence is presented, no matter where that may lead. After all, when the stakes are as high as they tend to be in divorce and custody cases, you deserve to be as well-informed as you can be to help resolve the matter equitably and without any additional emotional strain.Author:
Patrick J. Siewert, SCERS, BCERT, LCE
Professional Digital Forensic Consulting, LLC
Based in Richmond, Virginia
About the Author:
Patrick Siewert is the Principal Consultant of Pro Digital Forensic Consulting, based in Richmond, Virginia. In 15 years of law enforcement, he investigated hundreds of high-tech crimes, incorporating digital forensics into the investigations, and was responsible for investigating some of the highest jury and plea bargain child exploitation cases in Virginia court history. A graduate of both SCERS and BCERT (among others), Siewert continues to hone his digital forensic expertise in the private sector while growing his consulting business marketed toward litigators, professional investigators and corporations.