Video Evidence in Contested Divorces

[Family Court Strategies: When Your Partner Has BPD OR NPD Traits.]

We often talk of the benefits of video evidence in a general way, but all video evidence is not created equal.  Some things have extremely high value, some are hard to even get admitted into evidence, and some can be damaging.  

The purpose of this discussion is to talk about how to generate video evidence that matters and how to avoid being a victim of video evidence.

To provide some foundation to this discussion, I wanted to share the following:

• Video Evidence in Contested Divorces
  
  During a contested divorce proceeding, you may be able to admit video recordings into evidence to support your claims. Before video recording can be submitted as part of your case, you must be certain that you obtained these recordings legally and that they are relevant to your case. Because each state has its own laws governing divorce procedures and allowed methods of obtaining evidence, its important to know the rules before creating video evidence.

• Obtaining Recordings for Your Trial
  
  The Electronic Communications Privacy Act dictates how one may obtain “electronic documents”—such as a video recording stored on a computer, sent by email, or stored on a smart phone. Generally, if you just stumble upon an electronic video, for example, one stored on a computer you share with your spouse, this would likely be admissible in court, provided that it is pertinent to your divorce case. Likewise, if your spouse gave you her email password and gave you free access to her account, then a video you find in her inbox may be admissible. On the other hand, if you guessed your spouse’s password or used her personal computer while she was asleep or used a key logger to obtain her password, then any videos you find may not be admissible in court. In other words, if you were "snooping" in your spouse's phone or computer to try to find evidence, then you may not be able to submit the evidence to the court or, in some states, may be in violation of criminal statutes.

• Applicability to the Divorce Case
  
  General evidence rules hold that evidence must be material to a case in order for it to be admissible in court. In other words, the video has to touch on the issues of the divorce case that you or your spouse outlined in the divorce petition. For example, if you are trying to establish adultery in your divorce case and have a video recording of your husband and another woman, the court would likely consider the video material evidence since it backs the main issue at question in your divorce case. That said, if you are filing for divorce on the grounds of abandonment, an old video of your spouse with another woman may not be admissible because it is not material to the main questions of the divorce case. In other words, adultery is not a material issue in an abandonment case, even though it may have contributed to the downfall of your marriage.
  
  In some instances, the court may allow videotaped evidence that establishes evidence of the spouse’s character, but is not directly related to the case—for instance, a video of an angry spouse yelling, but not acting abusively. Not all judges will allow admission of such character evidence, however. It is up to the individual judge to determine whether character evidence contributes to the case in a substantial way that relates to the facts you or your spouse outlined in the petition.

• Child Testimony and Video Recordings
  
  If you and your spouse are disagreeing on the issue of child custody, the court may accept videotaped testimony from your child in some instances. In states where the court considers the child's opinion in making a custody determination, the court may ask for video recordings of the child's wishes instead of asking the minor to "take sides" against his or her parents in the courtroom. In most cases, this video testimony will take place in the office of a guardian ad litem or in the judge's chambers.
  
  Video evidence can abuse be useful in abuse cases. For example, in cases involving young children or older children who may have suffered abuse and would ensure further trauma by testifying in court, the judge may accept a videotaped deposition or statement, provided that the video recording was made according to state evidence rules—for example, using official procedures of the office of a guardian ad litem or general procedures of videotaped depositions.
  
  That said, the court will generally not accept home videos of children stating which parent they want to live with as part of the trial evidence. This is to ensure that the child is not unduly influenced by a parent or other family member.
  
  The court may also choose to use video evidence of your child's testimony instead of asking him or her to talk in court even if you, your spouse, and the child agree to the testimony. In these cases, the court may simply be trying to protect the child's best interests, one of the primary factors in how judges determine custody.

• Spousal Notification and Divorce Court Evidence
  
  Under some state laws, you will need to notify your estranged spouse of your intent to use videotaped recording as evidence in your divorce case. This must be done prior to the trial. For example, in some states, if you have a video recording of your child making a statement about alleged sexual abuse by your spouse, then you must notify him in advance. Thus, if you have evidence that you think could potentially support your case, present it to your attorney as soon as possible so that she can verify your state’s laws on its admissibility as well as serve it on your spouse, if required by your state’s evidence laws.
  
  The rules of evidence vary between states, but in some instances, your spouse and his or her attorney may have the right to review the video and receive a copy of it prior to the trial. You may also be asked to explain, in detail, how you obtained the video recording.

Has anyone had a judge watch a video tape?  

What impact did it have on the hearing?

[Skip]

We often talk of the benefits of video evidence in a general way, but all video evidence is not created equal.  Some things have extremely high value, some are hard to even get admitted into evidence, and some can be damaging.  

The purpose of this discussion is to talk about how to generate video evidence that matters and how to avoid being a victim of video evidence.

To provide some foundation to this discussion, I wanted to share the following:

• Video Evidence in Contested Divorces
  
  During a contested divorce proceeding, you may be able to admit video recordings into evidence to support your claims. Before video recording can be submitted as part of your case, you must be certain that you obtained these recordings legally and that they are relevant to your case. Because each state has its own laws governing divorce procedures and allowed methods of obtaining evidence, its important to know the rules before creating video evidence.

• Obtaining Recordings for Your Trial
  
  The Electronic Communications Privacy Act dictates how one may obtain “electronic documents”—such as a video recording stored on a computer, sent by email, or stored on a smart phone. Generally, if you just stumble upon an electronic video, for example, one stored on a computer you share with your spouse, this would likely be admissible in court, provided that it is pertinent to your divorce case. Likewise, if your spouse gave you her email password and gave you free access to her account, then a video you find in her inbox may be admissible. On the other hand, if you guessed your spouse’s password or used her personal computer while she was asleep or used a key logger to obtain her password, then any videos you find may not be admissible in court. In other words, if you were "snooping" in your spouse's phone or computer to try to find evidence, then you may not be able to submit the evidence to the court or, in some states, may be in violation of criminal statutes.

• Applicability to the Divorce Case
  
  General evidence rules hold that evidence must be material to a case in order for it to be admissible in court. In other words, the video has to touch on the issues of the divorce case that you or your spouse outlined in the divorce petition. For example, if you are trying to establish adultery in your divorce case and have a video recording of your husband and another woman, the court would likely consider the video material evidence since it backs the main issue at question in your divorce case. That said, if you are filing for divorce on the grounds of abandonment, an old video of your spouse with another woman may not be admissible because it is not material to the main questions of the divorce case. In other words, adultery is not a material issue in an abandonment case, even though it may have contributed to the downfall of your marriage.
  
  In some instances, the court may allow videotaped evidence that establishes evidence of the spouse’s character, but is not directly related to the case—for instance, a video of an angry spouse yelling, but not acting abusively. Not all judges will allow admission of such character evidence, however. It is up to the individual judge to determine whether character evidence contributes to the case in a substantial way that relates to the facts you or your spouse outlined in the petition.

• Child Testimony and Video Recordings
  
  If you and your spouse are disagreeing on the issue of child custody, the court may accept videotaped testimony from your child in some instances. In states where the court considers the child's opinion in making a custody determination, the court may ask for video recordings of the child's wishes instead of asking the minor to "take sides" against his or her parents in the courtroom. In most cases, this video testimony will take place in the office of a guardian ad litem or in the judge's chambers.
  
  Video evidence can abuse be useful in abuse cases. For example, in cases involving young children or older children who may have suffered abuse and would ensure further trauma by testifying in court, the judge may accept a videotaped deposition or statement, provided that the video recording was made according to state evidence rules—for example, using official procedures of the office of a guardian ad litem or general procedures of videotaped depositions.
  
  That said, the court will generally not accept home videos of children stating which parent they want to live with as part of the trial evidence. This is to ensure that the child is not unduly influenced by a parent or other family member.
  
  The court may also choose to use video evidence of your child's testimony instead of asking him or her to talk in court even if you, your spouse, and the child agree to the testimony. In these cases, the court may simply be trying to protect the child's best interests, one of the primary factors in how judges determine custody.

• Spousal Notification and Divorce Court Evidence
  
  Under some state laws, you will need to notify your estranged spouse of your intent to use videotaped recording as evidence in your divorce case. This must be done prior to the trial. For example, in some states, if you have a video recording of your child making a statement about alleged sexual abuse by your spouse, then you must notify him in advance. Thus, if you have evidence that you think could potentially support your case, present it to your attorney as soon as possible so that she can verify your state’s laws on its admissibility as well as serve it on your spouse, if required by your state’s evidence laws.
  
  The rules of evidence vary between states, but in some instances, your spouse and his or her attorney may have the right to review the video and receive a copy of it prior to the trial. You may also be asked to explain, in detail, how you obtained the video recording.

Has anyone had a judge watch a video tape?  

What impact did it have on the hearing?

[bravhart1]

UBPDm video tapes everything. She video tapes exchanges where we won't allow her to get twenty feet from us. We stand thirty feet away and she video tapes us standing there waiting for SD6 to come to us, she tapes us waiting for her. Some times we stand there for thirty or forty minutes.

What do you think she does with those videos? She can't be "protecting herself" as she claims because she knows we have never done anything to her. We refuse to speak to her (ignore her words) and will back up to avoid being too close if she approaches. I get video taped picking up SD6 from school if she "just happens to be there to speak to the teacher" (against court orders) it's actually pretty creepy to me that she has more video tape of me than my parents ever had.

I know this isn't what you meant about taping, but there are all kinds of video stories out there. We don't video because T asked us not to as it was making it weird for SD6 when mom was doing it.

Although I heard SD6 playing with her barbies last week telling them that they "have to watch this video of them crying when they were little because they didn't want to go see their daddy".  Guess I know how uBPDm is using at least some of her videos.

[ForeverDad]

I recorded before we separated.  Not only did I want proof I wasn't the one behaving so poorly, I also viewed it as an unusual form of INSURANCE to protect me somewhat from false allegations of Domestic Violence, child abuse, child neglect or child endangerment.  It didn't stop the allegations but over time they became more and more toothless.  Sadly, when it comes to DV and the Violence Against Women Act many jurisdictions don't care who the misbehaving person is, if the police are called it's often the man who is told to leave or carted off to jail by gender default.  And if the person who happens to be of the female gender files allegations, it's an uphill struggle for the person of the male gender to convince the court and professionals otherwise.

I recorded a few of her rages on our camcorder, nothing spectacular though.  I left it out with one on there and sure enough she saw it.  Never once said a word to me.  I walked in the bedroom and there was the tape, case broken and tape ripped into minute shreds.  I was actually surprised she didn't break the camcorder!  It proved to me she really knew what her behaviors were but it never stopped her from more rants and rages.

I recorded using small voice recorders.  I had three, and Still I was always scared the one I was using might get full or have drained batteries.  In recent years I've even seen ads for PenCams that not only record audio and simple video, they even write.  These days lots of electronic devices record, so the other's rights to be informed or not be recorded, if any, are probably not a huge issue.

I've been here about 9 years, in all this time I recall there were a few members here sternly told not to record, but it was barely a handful.  Yes, it would be wonderful if we could obey the letter of every law but the reality is that for many members here our spouses have no compunction against aggressively scheming and blatantly lying.  So in some cases it's a matter of self-preservation versus obeying the letter of some comparatively minor laws.  My point is that when weighing the risks pro and con, which is worse, (1) getting your hands slapped for recording?  Or (2) being accused of DV or child abuse, facing restraining orders or even criminal charges, you have no proof to the contrary and it comes down to your word versus emotionally compelling but 'unsubstantiated' claims and allegations?

I never used the few videos I have, 10 years ago the only way to make them was with camcorders and they didn't fit in my pocket.  I had hundreds of sound files... .rants, rages, threats, belittling, etc, and a lot of it was in our son's hearing.  Only in 3 instances were they used with the professionals beyond my lawyer's office, but they were crucial.

(1) Municipal court:  Separation week.  My ex had stormed out one Sunday morning.  When she returned I expected the worst and my recorder was running when my life was threatened.  (My son had asked to go outside and that triggered her overreaction.)  This time she had stepped away and so she didn't stop my call to 911.  Police arrived.  I was asked to hand son over to her and 'step away'.  My son shrieked and clung to me even tighter.  The officer looked at me for a long moment, said 'work it out' and they left.  Possibly my son saved me that day because my lawyer, a former police officer, said the policy is not to leave a domestic call without taking someone with them.  My recorder's speaker didn't work so I downloaded it and called the police back later that week.  She later went to trial for Threat of DV, something impossible without a recording.  She had to move out because I had a temporary protection order.  In the trial when it was played she admitted it as "that's how we argue".  The judge dismissed it saying without a weapon it did not meet case law which limited actionable threats to "imminent" ones.  I really think the judge stretched it because of her gender and that it was her first time in court.

(2) CPS:  A couple months before divorce trial.  When my ex raged at the pediatrician's staff, they decided to "withdraw services" and she felt she had to make me look worse than her.  So she took son to the hospital and somehow got him to say I had raged and beat him on his shins.  Though nurse noted he had normal active boy bruises on his shins, it was referred to CPS due to what he parroted.  CPS called me in.  I played a couple recordings I had made when son tried to show me his big bruise and when asked he said he didn't remember and thought maybe it was when he was on monkey bars in a park with his mother.  They had already spoken to him 'on neutral ground' at school but they wanted my side too.  Case closed.

(3) Family court:  A couple years ago I already had custody but was seeking majority time and I submitted about 10 recordings documenting ex's continuing disparagement and manipulations of exchanges, holidays, etc.  Her lawyer claimed he never got a copy so they had a recess to play them in a separate conference room.  Then played for ex to confirm, "I don't remember it but it's my voice."  Then all played a third time for me to confirm, one by one, that I hadn't edited them.  The decision was priceless even though the schedule change was somewhat minimal.  "In the tapes Mother is often yelling so loudly that it is difficult to endure listening to her."

Yes, courts have historically avoided dealing with recordings.  There is risk the one recording staged or purposely triggered the scenario.  That's why it's good to document not just the incident itself but also the before and after.  And of course, needless to say, we always have to remain calm and never sound triggered, enraged or responding in like manner.  Also important, don't play them for everyone, not even the children, you don't want the court angry that you're sharing information inappropriately.

Sorry for being so wordy.  Each person has to decide the costs versus benefits, whether to record and if so then be very careful to do it right.

[Bellerphon]

I used video and audio tape ... .the judge did see the video tape. Actually multiple judges ( assault, divorce and custody)

The audio tapes I had were the most extensive and damming for the custody hearings. The family planning team ( SW, CASA, GAL, mental health evaluators) literally blanched when I played them.

I live in a single party state which means I am allowed to record without notifying the other party.

[Nope]

In my case DH began recording after a magistrate told us he didn't believe that any of what DH was saying about his BPDex's behavior was true. Ultimately, DH's ex was only found in contempt for what she admitted to that time.

When the custody case finally got to court the BPD's L tried to say that the court has no way of knowing what happened between the parties in each indtance before the submitted recordings. She also tried to say that it was unfair because DH always knew he was being recorded and would act appropriately during those times, but could easily have added fuel to the fire in other conversations (basically, trying to say DH was just as bad). In the finding, the custody magistrate pointed out that in many texts, when the BPDex knew there was a record of her behavior, she still clearly couldn't control herself.

I would say that recording is very important, but it's still just one peice of the picture when dealing with the court.

[SES]

I regret not having a better approach to naming/dating the audio recordings I made at the beginning.   I didn't date or name them, and accumulated lots, which then became a mess to sort out.  I use a smart phone app, which I back up on hard drive, memory stick and Google drive.  Fair to say, I now name them by date!

[livednlearned]

I recorded a drunken fiasco one night while still in the marriage. When I met with my lawyer and told her about the video, she winced. Even though I live in a one-party consent state, she did not want to use the video and did not want me to even disclose to N/BPDx that I had the video. She was much more interested in the log I had been keeping about the pattern of alcohol consumption and pills that I had kept for the better part of a year. I kept the log because I was trying to figure out if that might explain the pattern of behavior my son and I were experiencing. I didn't keep it because I thought it would help me with custody, it was to help me sort out the cycles and try to figure out if there was a cause.

This is something that Bill Eddy recommends in his book, Splitting -- to keep a record or log as documentation. There is less of a "gotcha" feeling when you document thoroughly, and for that long, and with good reason. Because of the nature of family court and the sensitivities of parental rights and protecting the kids, and the guerrilla warfare that a lot of judges see in high-conflict cases, I think if they even sense a hint of malice in recording the kids' parent, you can find yourself in deep water.

More important than whether you record or not is how well your lawyer knows the judge. My L did not think my judge would take well to recording.

However, I did use my phone a few times as a disincentive for N/BPDx to approach my car. By our court order, we were not to get out of the car during exchanges. He was not to approach my door, and I was not to approach his. On a few occasions, he walked toward my car and I held up my phone. This is legal to do where I live, and I would never use it in court, but it did give me a sense that I had a way to protect myself.

Using video in your case is not a strategy. It's a tactic. It might work in some cases, and in others it could be the thing that destroys your chances in court.

There are many strategies to pick from, and many tactics to use in order to implement that strategy. In my case, a parenting coordinator was the tactic that worked. For others, this has been disastrous. Same with video recording.

If you come across a judge who has a thing about privacy and respect for someone's reasonable expectation of privacy, then you make your case harder. If you come across a judge who thinks video is the best thing to ever happen, then you're in luck. Find out from your lawyer what could work, and only use it if it's part of a well thought-out strategy.

It is very hard for us as parents to get a real sense of what judges see every day in their court rooms. If you hang around enough, you start to see a lot of high-conflict parents who look like immature kids, who cannot do the right thing and focus on what's best for the kids. Every major research study shows that battling parents is bad for the kids. It's not the divorce that wrecks the kids' lives, it's the fighting parents. In our cases, we have to overcome the stereotype that both parents are stuck in conflict. So we have to keep that in mind when we put together a strategy. If the strategy smells at all like a parent on the warpath, that is going to land you right in a bad stereotype. Maybe for some it will work out, but for most, and this is what Eddy recommends in his book, the key is to join ranks with the other adults in the court room. Be the parent who is not trying to destroy the other parent. Be the parent who is trying, in the face of great odds, to focus on what is best for the kids, despite the fire hose of conflict coming from the other parent. Be assertive about that stance, and don't waver.

My judge, and my court, treated N/BPDx's confidentiality with a lot of regard, despite his behavior. I actually respect that, because I want the same considerations afforded to me.

Not saying that there isn't a place for video, just that it's like everything else in these cases. Everyone's situation is slightly different and these courts are extremely local and idiosyncratic in how they interpret laws.

[rj47]

I started recording with my phone four years ago after she picked up the phone to call the police and fake a DV allegation. Our 19 year old son watched her hitting her arms and scratch her neck saying... ."who do you think the police will believe?". It was the first time that one of our kids moved against her... .he said "they'll believe me, you're the one that needs to be locked up".

I can't legally use recordings... .they are for me. Two years ago during a terrible episode while we were traveling she accused me of physical violence and rape texting a female friend and a man she was in an emotional affair with. The most frightening part was she continued the lie for days after she appeared regulated again telling them she feared for her life. That night in the hotel and the days after forever changed me as I truly became afraid of what she is capable of.

Her excuse? "I wanted him (the boyfriend) to feel sorry for me" and "you hurt my feelings so much that night".

Buried in over a 100 hours and several years of recordings is her acknowledgment of the lie, insincere apologies, and, twisted explanations for it and the aftermath. She's also physically violent so, her, morning after beating apologies are important should I need them. There's also recordings of unbelievably long rants (a few times all night) that are downright demonic in their content.

I also save every text she sends. I have hundreds of rambling messages she's sent over the years. Some of them cover entire days while I was at work and contained old recycled accusations and are difficult to understand (disconnected rants).

I'll play a few recordings for her when the final split comes soon as a possible deterrent to the character assassination she will embark on. It will happen anyway, but that's OK. I won't be looking in that rear view mirror much after decades of abuse.

And, should I ever get nostalgic for the few good times, I'll have the recordings of the raging demon to remind me of how much I'm missing. I won't be listening to them much... .as doing so gives me major anxiety attacks.

[Sir5r]

I began doing this years ago. They're good to have.

I thought I might be able to use them for an OOP

When I leave, my attorney informed me that judges

Want recent evidence, so make sure if you need them

They are recent.  Old videos like faded scars from

Their abuse are NOT going to be enough.

[scraps66]

there was one occasion I whipped out my recorder to back my exNPD/BPD off.  I was amazed at how swiftly and adeptly she continued, but in a way that made me appear as if I was "attacking" her.  It never went anywhere but I think the threat of me using it was enough to at least control her a little.  she then moved to calling the police at her whim.

[.cup.car]

I never delete text/facebook messages so documenting weird stuff was a matter of hitting the PrintScreen button on the Keyboard and cropping it in Photoshop. Go into it expecting the process to be time consuming.

The biggest challenge is deciding what's worth to save & present, and what's not. Your goal should be to present a tangible "storyline" that any third party can easily understand. In my case, I showed the completed legal documents to a friend of mine, and asked him to kind of summarize what he'd read. His response was "she begs for your d**k and then says ewwwww you're stalking me." If your friend can give you the same basic summary of the events that you yourself keep in your mind, you did it right.

I keep everything in a binder under my nightstand. I think it's around 125 pages or so of crazy messages from her (although some of it repeats, a portion is the police document, the rest are the legal documents), plus hand-outs from domestic violence counseling and stuff.

Any false accusations from her that involve the cops showing up at my door, the binder will be dropped at their feet.

[bravhart1]

Do yourself a favor and put a copy in a safe place, like someone else's house. Also, keep it hidden in your own house. Just pretend that she comes in and looks around when you aren't home. Long story, but trust me.

[ogopogodude]

Getting video evidence and audio evidence entered into court may be a problem, yes... .

But do it through the "back door" like I did.  Go to a social services agent (The Ministry of Children and Family Development as it is known here in Canada) and divulge EVERYTHING.  Then get the agent to interview the children, you, your estranged spouse, ... . and finally,... . get a report made by the SS agency (upon the request of YOUR L)  for you to use in court. 

It worked for me. It will work for you.  A judge MUST review ALL evidence before him especially when it is a social services agency.

Trust me on this one: A judge cannot, ... .  and will not say, ... ."uh,... . I am not going to look at this important document from a government agency, but I would rather base my decision on "he said/she said" crappy evidence, ... . so I am going to look at what MR X says in his affidavit as well as Ms X says in her affidavit and I will go from there... ."

[Nope]

Getting video evidence and audio evidence entered into court may be a problem, yes... .

But do it through the "back door" like I did.  Go to a social services agent (The Ministry of Children and Family Development as it is known here in Canada) and divulge EVERYTHING.  Then get the agent to interview the children, you, your estranged spouse, ... . and finally,... . get a report made by the SS agency (upon the request of YOUR L)  for you to use in court. 

It worked for me. It will work for you.  A judge MUST review ALL evidence before him especially when it is a social services agency.

Trust me on this one: A judge cannot, ... .  and will not say, ... ."uh,... . I am not going to look at this important document from a government agency, but I would rather base my decision on he said/she said so I am going to look at what MR X says in his affidavit as well as Ms X says in hers... ."

This is absolutely true. There are certain kinds of evidence that a judge may not be allowed to review. There are kinds of evidence that a judge might be allowed to review, except that the other side objected, so it went without being reviewed. But a judge will absolutely consider the opinions of unbiased third party professionals who can and usually will review that evidence.

[ForeverDad]

Do yourself a favor and put a copy in a safe place, like someone else's house. Also, keep it hidden in your own house. Just pretend that she comes in and looks around when you aren't home. Long story, but trust me.

What is a safe location?  Somewhere that the spouse does not have physical or electronic access.

• Computers are particularly vulnerable to snooping and spyware, files found or files destroyed, browser history viewed or monitored, especially if the spouse is computer savvy or seeks out someone who is computer savvy.



• Members here have reported that a locked briefcase can be easily broken open.



• Members here have reported that the home can be ransacked and hidden documentation found.



• Members here have reported that a vehicle's locked trunk could not withstand determined use of a crowbar.



• Members here have reported that an office can be searched when a spouse comes in and tells the unsuspecting staff, "I'll just wait in his/her office."

I made multiple copies.  Yes, it's hard to keep track of it all over time, but better to have several somethings than none.

[bravhart1]

A safe deposit box, and or a friends house that the BPD does not know are good choices.