The use of video and audio recording is becoming a commonly used tool in divorce and custody conflicts. Here are some guidelines when recording events.
Videotape of a parent mistreating a child, or images of a parent or guardian driving while intoxicated can exert a strong influence on a judge or custody evaluator. Video evidence is compelling and difficult to refute; when used properly it can be a powerful and persuasive factor in how your case is decided.
Laws concerning privacy and audio/video recording vary widely from state to state, and the penalties for unauthorized or illegal recording can be severe. In addition, the impression that illegal recordings make on a judge are uniformly unfavorable, and may in fact destroy any case you have. If in doubt about the permissibility of recording, discuss the situation carefully with your attorney.
Before video or audio taping your soon-to-be-ex (or their spouse or partner), consider these restrictions and guidelines:
Generally speaking, what can be seen from public view (such as a road, sidewalk, or balcony) can be photographed without legal repercussions and without the need for consent. Photographs taken in areas not visible from a public vantage point usually require consent.
If consent is required, it must be obtained from someone who is legally able to give it. For example, permission from a child or mentally handicapped person may not be legally binding, and a tenant may not be authorized to permit photographs of parts of the building not rented by the tenant.
Consent to enter a home or building does not automatically imply consent to photograph the interior. Be aware that if you exceed the legal boundaries of the consent you are given, you may invalidate all of your evidence, including that which you had legal consent for.
Although verbal consent may protect you from liability, written consent is more likely to withstand the scrutiny of the court. In the context of divorce and custody disputes, obtaining written permission from your ex is unlikely, so make certain the video or photos you take do not require such consent.
In general, the court considers that "public figures" and people who become involved in events of "public interest" have less of a right to privacy than do private persons. This will probably not apply to your ex, but it will also not restrict you from videotaping them in public, or as outlined in item (1) above.
Be aware that in some states the use of hidden cameras is illegal, and may carry criminal or civil penalties. These restrictions usually extend to audio recordings as well. We suggest you examine the laws in your state to determine what restrictions exist with regard to the use of hidden audio and video recording devices.
It is always legal to tape or film a face-to-face interview when your recorder or camera is in plain view, as the consent of all parties is presumed in these instances. The question of whether a recording device is in "plain view", however, is not always straightforward. A partially-visible tape recorder in a pocket, for example, may be considered by the court to be concealed.
Note that video or photos may "legally intrude" on a person without being published or publicly viewed. Intrusion can be considered to occur as soon as the image is taken, regardless of whether or not anyone ever sees it. Federal law as well as many state laws also make it illegal to possess and/or publish material gathered from an illegal wiretap or video device, even if it is made by someone else.
When videotaping, discretion often produces the most useable evidence. If your spouse knows they are being taped they will be on their best behavior and you will likely not get much of value. If, for example, you want to document your ex's behavior during an exchange of your child, consider having a friend videotape the scene from a nearby vehicle. If your ex isn't aware that their actions are being recorded, he or she will be more likely to "act natural" and misbehave.
If you do not have access to a video camera, one alternative is to meet in a public place that is already under surveillance, such as a gas station or 'mini-mart'. Many gas stations, for example, have cameras that cover the pump area outside as well as the interior of the building. These cameras are in operation 24 hours a day and record everything that happens on the premises. A casual inspection will show which areas are covered by the cameras; you can then pick a spot that will be recorded and arrange to meet your ex there. If she misbehaves, it is a simple matter to request the tape though a subpoena. This is especially true if she commits some sort of assault or threatens you in any way during the exchange.
You must take care not to "bait" or provoke your ex, or do anything to precipitate an unpleasant scene. Be yourself, be polite, and don't start trouble. Judges often cast a skeptical eye on videotaped evidence, especially if the subject was unaware they were being recorded. If you cause a dispute, the videotape will probably be used against you, ultimately harming your case.
That said, videotape can make a world of difference when used properly. If your ex is polite and well-mannered in court, but is shown on tape cursing and picking a fight with you when exchanging the child, this can cause a judge or custody evaluator to think about your ex in a different light. In some instances, just showing the tape to the opposing attorney will motivate them to settle on terms more favorable to you.