Courts are asked to review electronic evidence more than ever, particularly in the age of the pandemic. You never know when or where the next video camera or recording device is going to show up. Particularly, when you’re in the middle of a contested divorce, if there are custody issues, caution is key. In addition to the obvious cell phone recordings, evidence in family law matters often comes from “nanny cams”, doorbell cameras, recordings of Zoom and FaceTime meetings, apps on cell phones to track locations, and other electronic marvels.
A quick Internet search provides countless options for an individual who is looking to set up some type of surveillance on practically anyone. Hidden cameras (and not so hidden cameras), GPS devices, and sound recorders have come a long way. The reality is that any litigant should assume that the person on the opposing side of a matter is going to use all available methods to win their case.
Here are some real time examples of family law matters in which electronic evidence carried the day: a recovering alcoholic looking to regain custody of her son was photographed in a bar with a glass of wine; a father looking for shared custody certified in court documents that his live-in girlfriend was not a smoker, just to have his soon-to-be ex-wife provide the court with pictures of his girlfriend smoking (which had been taken from his Facebook page). In one custody case, a father had an application on his child’s phone which recorded how fast the child was travelling when in the mother’s car (30 mph over the speed limit). In another example, a client receiving alimony was captured with a live-in boyfriend based upon a small camera that had been placed on the telephone pole across the street from her house. A “friend” of a woman seeking alimony recorded a phone call in which the woman admitted she had a secret stash of thousands of dollars. All of these images or recordings were admissible in court proceedings and were used against the litigants.
As long as the individual responsible for the recording, or electronic evidence is available to authenticate it, meaning they can confirm it is an accurate depiction of what occurred, the evidence will likely be considered by the judge hearing the case.
When involved in litigation, particularly in familymatters, litigants find themselves under the proverbial microscope. The sad reality is that people must assume that they are always being photographed or recorded. In New Jersey, one party to a conversation is allowed to record without the other knowing. This is the time to be the best version of yourself, and as hard as it may be, refrain from doing and saying things that can hurt your position. This includes badmouthing the other party, even if you believe you are speaking with a confidant. If it’s not something you want a judge to hear, don’t say it.
That being said, the reality is that people do and say things in the heat of a moment, that in retrospect they wish they hadn’t. When this happens, immediately advise your attorney so he or she can determine the best course of action to minimize any damage. It is always better to head off a problem than to have to defend against it.