A major topic of discussion for Mr. Custody Coach is when is it appropriate (and/or legal) to use audio recording or video recording of your high-conflict ex-spouse when they are acting out.  These situations include child custody exchanges, recording telephone calls with the children, face-to-face and recording telephone calls between you and your ex-partner.  Use of videotaping and audio taping is becoming more prevalent in divorce and child custody situations.

Audio recording or video recording of a parent abusing a child, driving while suspected of being under the influence of drugs or alcohol, or behaving in a threatening manner at child custody exchanges can be very compelling evidence for a judge who will ultimately making a ruling on your child custody arrangement.  So, too, can recording telephone calls that include threatening or abusive language.  However, it is critical that you understand the rules and laws regarding recording telephone calls in your state, the federal government, and very often at least one other state if your ex-spouse lives outside of your jurisdiction.

Your best course of action is to always consult your attorney when contemplating the use of audio recording telephone calls or video recording in your situation. Laws which govern privacy as it relates to audio recording and video recording vary greatly from state to state.  Penalties and fines for violating state and/or federal laws are steep.  In your family court child custody situation, violating the law regarding wiretapping will serve to undermine any case you may have against your ex-partner.  Always consult your attorney.

Before videotaping or audio taping telephone calls or in-person conversations with anyone, consider these restrictions and guidelines:

  • As a general rule, what can be seen from public view can be photographed without negative legal ramifications and without requiring consent (e.g. sidewalk, roadway, balcony, and similar). Photos taken in areas not visible from general public view typically will require consent of the party being photographed.
  • If consent is required, it must be obtained from someone legally able to provide it. Those not generally able to give consent include (but is not limited to) a child, a mentally handicapped person, a tenant may not be authorized to permit photos of parts of any building they’re not renting.
  • If you’re granted consent to enter a home or building, don’t presume to believe this grants consent to audio record or video record within.  Further, if you exceed the boundaries of consent that you have been granted, you risk invalidating all evidence obtained regardless of the level of consent granted you.
  • Verbal consent is good.  Written consent is always better and has a greater likelihood of holding up to court scrutiny.  Written consent is obviously unlikely to occur with a high-conflict ex-spouse.  If you situation requires consent from your ex-spouse, you must make it abundantly clear up-front that you are recording telephone calls and they must expressly agree to being recorded.  This is particularly important when the voice, in-person discussion, or telephone call is being recorded.
  • In some states, the use of hidden cameras is against the law.  As such, they’ll carry with them criminal and/or civil penalties.  Again, we urge you to consult an attorney, even if you review the state-by-state guidelines on our resources page.
  • While it is always legal to videotape a face-to-face interview when your recorder or camera is in plain view (the consent of all parties is presumed under such circumstances) – an interaction between you and your ex, even with the recording device in plain view might not constitute an “interview.”

There are lots of ways to do self-harm when it comes to attempting to audio tape or videotape situations that often arise during contentious child custody litigation.  When video recording, discretion often produces the best evidence. If your ex-spouse knows they are being recording, it is highly unlikely that they are going to act-out.  You’re unlikely to obtain anything that will prove valuable to your case.  When it comes to child custody exchanges and you want to document your ex-partner’s expected outbursts, it’s often better to have a friend record the event from a nearby vehicle.  You’ll have a greater chance of catching your hostile ex doing what they’re normally inclined to do and not holding back in the face of being obviously recorded.  Again, please consult your legal adviser about the legality and admissibility of such a recording.

Better still, consider doing your custody exchanges in a public location that is already under the watchful eyes of security cameras.  They’re just about everywhere now and it shouldn’t be hard to find.  Find out in advance who owns the cameras, so that if something uncomfortable, unsafe, or otherwise threatening occurs – you’ll know where you have to go to secure the footage.

Another word of warning: DO NOT “bait” or provoke your high-conflict ex-spouse.  Don’t do anything that would lead to an outburst or negative act on the part of your ex-partner.  We always advise folks to be the calm, cool, and collected one – always on your best behavior.   Family court judges are always looking for a reason to cast a skeptical eye on videotaped evidence.  This is particularly true when the target was unaware they were being recorded. If you are shown to overtly initiate the dispute, the evidence may be turned against you.

Audio and/or video evidence can bolster your case tremendously if it is executed with great care.  When your ex-spouse puts on the polite, well-behaved, demure show for the family court judge – a videotape, audiotape, or recording telephone calls demonstrating their rage or violent outbursts can shine a light of truth as to how they actually act towards you.  It can be especially powerful evidence if their loss of control takes place in front of or is directed towards the children.

For more information and a state-by-state summary of laws relevant to wiretapping, audio recording, video recording, and recording telephone calls see our resources page:  State-By-State Recording Telephone Calls Information