Why You Should Not Record Your Child During a Custody Dispute

The reasons why you should think twice before videoing your child in a custody dispute.

Taking videos for family court

It can be very tempting to record videos when you separate. Making videos of family situations generally does more harm than good in family court. Often, the person who makes the recording is the one who gets in trouble in court. 

Videos of Children

You may feel that a video of your children saying where they want to live or complaining about the other parent is helpful. The reality is that videos of your children are unlikely to be helpful to you in family court. 

Filming a child and asking them questions about where they want to live is putting them right in the middle of parental conflict. A child should not be asked to choose between their parents. If you want to have evidence of your children’s views and preferences, there are other ways to go about it, such as a Voice of the Child Report or a Parenting Assessment. Taking a video of your child can be considered exposure to parental conflict. 

Recordings of children are particularly concerning. If you are recording a parenting exchange, are you really focussed on the children or are you focusing on the conflict with your former spouse? 

Videos of Parents 

The same goes for recording videos of your former spouse. Maybe you want to catch your former spouse arguing with you or record a parenting exchange to keep the other spouse on their best behaviour. Just like taking a video of your child, taking a video of your former spouse is generally not a good idea. 

Parents should be acting in their children’s best interests. Ask yourself, in the moment, is this in my children’s best interests to record them, to record the other parent? Almost always, the answer is no. 

Taking videos of your former spouse has been described by a judge as “a strategic act of aggression and escalation”. As Justice Pazaratz observed in Whidden v Ellwood at para. 86. 

Often there is a lot of conflict and not much trust between separated parents. Separated parents will need to continue to communicate. Recording each other or the children can increase the conflict and does not help improve communications. Videos increase conflict and destroy trust.

Recordings are discouraged because they are an invasion of privacy, and they contribute to the conflict and lack of trust. Recordings tend to be more damaging to the coparenting relationship and to the children themselves. 

What do Judges say about videos from parents?

Judges often do not like it when parents record videos of their children or their former partner during a custody case. Even if you believe a video helps your argument, it can do the reverse and hurt you. 

It puts your child in the middle.

Recording a child could be a betrayal of trust or could make a child feel like he must choose between his parents. None of this is in a child’s best interests and is exactly the kind of behaviour that judges see as harmful. 

It’s rarely your child’s best interests.

There are Court cases where the judge has criticized the parent who made the video recording. Typically, a court will not consider video recordings and will instead warn the parent who made them. Making a recording of the children is seen as involving the children in adult issues. 

Recording the other parent rarely helps either.

Recording your former spouse without their knowledge can be seen as deceptive and backfire on you. Recording your former spouse with their knowledge can be seen as creating conflict. 

By being the one taking the video, you are going to be scrutinized by the court. You chose when to start and end a recording. What did you choose to leave out? What happened before you started recording? What happened after? Your decision to record creates many questions.  Why did you choose to start recording? What happened before you started recording? Did you bait your former spouse to get a reaction on video? An incomplete recording can be misleading because of what is missing. Instead of being helpful to your position, videos can be damaging because of these issues. You could hurt your position if you provide an incomplete recording to the court. 

Since you are the one who decided when to start and stop the recording, you are the one who chose what was recorded. The other person does not get that choice. Because of that advantage to you, the decision to record immediately becomes suspect. 

Often the person doing the recording gets warned by the judge, not the person being recorded. Recordings typically do not help a judge decide. 

What you should do.

Making written notes (including dates and times along with what happened) if something is worrying you. It is more helpful than a video.

Make sure you talk to a lawyer before putting any video evidence to a Judge.

Focus your energy on creating a stable, low-conflict home for your child.

A Judge wants to know you are shielding your child from the legal conflict, not putting them in the middle of it. If you’re ever unsure, ask us.