Cell phones have made it easy for people to take video anywhere, any time. It seems like if someone behaves badly– from the police to some rude lady in the grocery store checkout line – it’s going to end up on the internet. So what if your ex is the one behaving badly? Should you record your ex? The answer is “well, maybe.”
Is it Legal?
It’s legal to record your own interactions and telephone calls in Virginia. Virginia is a “one party consent” state, meaning that you only need one person’s permission to record a conversation. Of course, just because something is legal doesn’t mean it’s a good idea.
Proceed Carefully
Don’t get me wrong – there are times when a video or audio recording wins the case for my client in a custody matter. If we have video of the other parent drunk, screaming, calling names, breaking things, driving unsafely, or any number of bad behaviors, it can be really strong evidence.
However, there is a lot that can go wrong when you record your ex, too – especially when kids are involved. Let’s talk about some of these times when you shouldn’t record.
Safety First
If your ex is raging and you or your kids are in danger, don’t stop to take video – get to a safe place and call the police. It may seem obvious, but you’d be surprised how many people try to record while their ex breaks things, gets in their face, or threatens them. In general, it just makes the person more angry, and often they take or even break the phone.
The police will gather the evidence. Your only job is to be safe.
Where Are The Kids?
If you recordyour ex while your kids are present, you’re probably doing more harm than good. It is really harmful for kids to be in the middle of conflict between their parents. Your focus should be on getting them out of that conflict, not on recording it.
It’s always heartbreaking to be in court a recording where you can hear hear kids crying, scared, or asking their parents for help in the background while the parents are more focused on recording each other. This makes you look like a jerk in court. Judges hate it. Put the phone down and go comfort your children. Tell your ex you can talk later when the kids aren’t there.
Another difficult situation is when parents record the other parent mistreating the kids. Again, this can sometimes be really helpful in court. I once had a client who was recording his wife teaching their son piano, and suddenly she smacked the child in the head when he make a mistake. Yikes!! The judge was not impressed by her skills as a piano teacher or as a mom.
So, while there are rare times when this works, for the most part it backfires. After all, if you have time to record the abuse, you have time to stop the abuse. Your ability to protect your kids is a factor for the court to consider, too. If your ex is frightening or harming your children, don’t stop and film it — get them out of there.
Recording the Kids
Sometimes I see parents who record themselves interviewing their kids about what they want. For example, they might ask, “Who do you want to live with, me or your dad?” Not only is this a terrible thing to do to a kid, it’s also not going to be allowed in court, because it’s hearsay under the rules of evidence.
This one is not a “maybe.” If you find yourself interviewing your kid for evidence purposes, it’s time to rethink your life choices. Just don’t do it.
Kids First, Always
In short, I’m not telling you never to record your ex. But especially if you have kids, think carefully before recording, and always put their needs first. Putting the kids first is something that can never look bad for you in a courtroom.
