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Custody Litigation and Video/Audio Recordings

With the technological capabilities of the smartphone, recording and/or videotaping another party is easier than ever. However, it can sometimes be a violation of Pennsylvania law.

The Pennsylvania Wiretapping and Electronic Surveillance Control Act, in general, prohibits the interception, disclosure, or use of any wire, electronic, or oral communication. The contents acquired this way is prohibited other than "any telephone...or any component thereof, furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business..."

The most important fact to remember is that this is only prohibited when the person has an expectation of privacy. The Wiretap Act does not protect a person when they have no reasonable expectation of privacy.

For example, in Commonwealth of PA v. Large, the defendant was accused of violating the Wiretap Act when he wore eyeglasses equipped with a camera to record audio and video of a conversation between him and a nursing home director, without the director's knowledge. Since the door to the director's office remained open, staff walked by and could hear the discussion, and another staff member was invited to participate in the conversation, the director had no reasonable expectation of privacy. The judge ruled in the defendant's favor because it could not fall under the Wiretap Act with no expectation of privacy.

For this reason, it is always important to think before you say or do something in public, on Facebook, Snapchat, or other social media outlets that could be used against you, especially in terms of your divorce or custody case.

There are several important factors to consider. Can you authenticate the recording and identify who took the recording and who are the participants at the time the recording was made? Second, is the recording relevant? This is especially important for custody exchanges since many times they are in public places. Third is there an expectation of privacy if the recording occurred in a public place? Again, in custody cases where there are others present such as grandparents or even other children. Fourth, is there probative value to the recording and does it outweigh any prejudicial effect?

A video recording is demonstrative evidence if:

(1) it is properly authenticated pursuant to Pa. R.E. 901 as a fair and accurate representation of the evidence it purports to portray;

(2) it is relevant pursuant to Pa. R.E. 401 and 402; and

(3) it has a probative value that is not outweighed by the danger of unfair prejudice pursuant to Pa. R.E. 403

In a case which was recently tried before the Court,

"[T]his case regards a blatant and cruel Father unwilling to encourage and value Mother and Mother's relationship with the minor child; holding minor child tightly in his arms, with minor child squirming and cowering his head, Father spouts "you're f*ing dead to me", you're a disgrace" and "you're sick" to Mother's face. Other verbal accosts of Father's directed to Mother in the presence of the minor child include, "you c*", "you b*", and "you're not welcome here." The cell phone video will reveal such factual evidence, and as such, will establish these material facts, thus making it relevant.

Furthermore, the "probative value" is such to confirm these factual instances, and is no way prejudicial as it is an accurate depiction of Father's behavior. It was done in the presence of Mother, the minor child and Father's other 10 year old child. He knew he was being recorded and voiced no objection. Moreover, done in the presence of others loses the expectation of privacy, discussed below.

Our society has become so technologically advanced with the advent of the smartphone. Almost everyone now possesses such a device, with the capabilities of video tapping. It has become common for parents in custody matters to video tape exchanges, etc., unless a Court Order prohibits such. See, Buckius v. Sadler, 81 Pa. D. & C. 4th 262 (2007).

In the within matter, Father knew, or had reason to know that Mother was videoing the events that took place at the child's visit to the doctor's office. He voiced no objection. But most significantly, there was no expectation of privacy, as Father's other child, was present; and he continued to have discussions and interactions with Mother in the children's presence. It is demonstrative evidence of Father's aggressive, verbal, malevolent and berating behavior towards Mother in the presence of others. It clearly and accurately depicts Father's degree of conflict.

Based on the foregoing, Mother's cell phone video recordings do not run afoul of the Wiretap Act, and hence, are permissible as demonstrative evidence in this matter.

The above is a snapshot of the evidentiary rules and how this type of evidence can be used toadmit evidence which may otherwise be excluded from trial.

For more information on this issue and other pressing evidentiary tactic in custody litigation,please contact us at your earliest convenience.

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