Children and Divorce NEWS/BLOGS ARCHIVE


Recordings of children – can they be used in court?

June 19, 2017 by Melissa Rutkoske

IS RECORDING KIDS ILLEGAL EAVESDROPPING?

 

Lately my work in custody cases has got me focused on the use of recordings of minor children as evidence in court. It’s so easy to record anything these days; just whip out your smartphone. But maybe using that smartphone isn’t so smart.

 

When it comes to recording phone calls and conversations, New York is a “one-consent state,” meaning a recording is legal if at least one party to the call or conversation consented to its being recorded.  Stated another way, for a recording to be legal, it is not it is not necessary to have the consent of both parties.  However, merely being a legal recording does not necessarily mean that it will be admissible in evidence.

 

In custody cases it usually comes up this way: a parent or guardian makes the recording, either of the children on the phone with their other parent or when the children return to him/her and report happenings at the other parent’s home.  When the recording is offered in evidence at a trial, the legal test of its admissibility in evidence is whether making the recording was in the best interest of the child.  A parent or guardian can consent vicariously for a child.

 

However, consent is not to be had simply by using the magic words. The parent or guardian can’t just say, “I did it in the best interest of the child.” That’s not enough for vicarious consent. Instead, a court will consider whether the adult making the recording did so in good faith, with an objectively reasonable basis to believe it was necessary for the welfare of the child. In addition, there are other factors a court considers in deciding whether the recording was necessary to protect the child’s best interest: what was the recorder’s motive, and is the child mature enough to make well-reasoned judgments about what is in his/her own best interest? The answer for a 16-year-old may well be different than for a 6-year-old.

 

So, making a recording of your child doesn’t necessarily mean you can use it in court or that a recording made by your ex can be used in court against you. Moreover, if a recording of a minor is inadmissible in evidence, the person who made it may be guilty of illegal eavesdropping, a criminal offense.  As New York State’s highest court has said, “eavesdropping has grown more simple and yet infinitely more complex in the modern communication age.”

 

That’s the legal side. But isn’t there a more important question, namely, what is the effect on the child(ren)? The Washington Post says kids these days don’t even need to be taught how to engage with video recorders; they do it intuitively, on their own social media channels. But this is different. When kids have their own YouTube channel they know it. When kids are recorded by adults who intend to use the recording in a court battle that will have an effect on the kids’ lives, that’s a whole different ball game.

 

For starters, the BBC reports that kids behave differently when they know they’re being watched. Is recording any different? Imagine how uncertain you would be if you understood that sometimes you’re being recorded and sometimes not, but you don’t know when.  Can you imagine doing that to your child?

 

It’s not surprising, then, that courts take a dim view of parents recording their children.  Courts are focused on the welfare and best interests of children affected by judicial proceedings.  How is that served by recording your children? Recording your children fosters distrust and parental alienation. It puts children under the impression that their parents are building cases against each other and inevitably, they (the children) will be stuck in the middle. Talk about stress! Therefore, generally speaking, it’s a bad idea to record your children and it is never a good idea to let them know they are being recorded.

 

Of course, when there is abuse happening that a parent can’t prove without a recording, this may be a sound act.  Parents should seek legal advice and perfect a plan with counsel in order to ensure that this recording would be legal, proper and admissible.   Additionally, if you do choose to go down this path, remember that your voice may very well be on that tape for all to hear.  Your words AND your tone will be scrutinized by the judge and by the other side.  Choose your words carefully; an intimation that you are coaching the children or placing them in a position where they have to comment on the other parent’s behavior, will not be helpful to your case or your children’s well-being.  For instance, if a child comes home to you and states, “Mommy spanks me when I won’t eat my vegetables.”, a proper response would be, “Let me speak with Mommy about that so I can understand it more, but don’t you worry.  We’ll work it out.”  An improper response would be, “I’ve told your Mommy that we don’t ever hit.  That is wrong and I’ll tell her again.”  As you can see, this is tricky business.

 

So, while it’s easy to record your children as a courtroom weapon against your spouse or your ex, ask yourself: is the negative impression it’s likely to make on the court and the negative effect it’s likely to have on your relationship with your child worth the advantage you hope to gain in litigation?  Think about it.

 

 

Introducing Your New Love to Your Children

February 3, 2017 by Melissa Rutkoske

WHETHER, WHEN AND HOW TO INTRODUCE YOUR KIDS AND YOUR NEW SIGNIFICANT OTHER

 

You’re divorced or separated and you’re dating someone you’re serious about. You want to introduce your new partner to your children. You want this introduction to go well. After all, these are the most important people in your life. How do you make it a success?

 

Constance Ahrons has written a book that covers this.[1] She says factors you’ll want to consider include how long you’ve been divorced or separated, the ages of your children, and the level of commitment between you and your new partner.

 

A threshold principle is “Easy does it.” The weight of opinion is if your new squeeze isn’t serious, don’t introduce him or her to your children at all. If your new relationship is serious (i.e., you’ve been dating long enough to start really knowing someone), you have everything to gain by going slowly.[2] Introducing your loved one to your children too soon may trigger insecurity or even rivalry.

 

The introduction should not be heavy or emotionally laden. A group setting, something casual and informal, usually works best. Maybe you’ll have several such group get-togethers with this casual tone.

 

Let your kids know they have only two parents — one mom and one dad – and neither of them is being replaced. For their emotional security, kids need to know there’s enough love to go around, and that your new love interest does not replace your ex or displace them. While this may be obvious to you, they need reassurance. To help with this, you may want to let your ex know; after all, you are the parents.

 

Post-divorce or post-separation, your top missions are healing yourself and helping your children heal from that experience. You want to give yourself and them a “soft “landing” if you can.  If you try your best and that doesn’t happen, be gentle with yourself. Yes, you control what you do; however, you don’t control how others respond.

 

[1] We’re Still Family: What Grown Children Have to Say About Their Parents’ Divorce (Harper Collins, 2004). In this book Dr. Ahrons interviews 173 grown children whose divorcing parents she had interviewed twenty years earlier.

 

[2] There are views to the contrary. For example, Michele Zipp writes in favor of introducing your new partner to your kids sooner than later. Your can read her article here.

 

Children’s Needs in Divorce

July 27, 2016 by Brett Jones

FEEDBACK FROM CHILDREN OF DIVORCED PARENTS — WHAT WORKS AND WHAT DOESN’T

One of our collaborative divorce colleagues interviewed a group of teens and young adults with divorced parents about their thoughts and feelings following the divorce. Their responses may help divorcing parents to make decisions that support  their children’s ability to cope with the change. You can read her article here.

 

Your child’s voice in divorce: children’s lawyers

June 14, 2016 by Melissa Rutkoske

 

THE ATTORNEY FOR THE CHILD MAKES THE CHILD’S WISHES KNOWN

 

Children are  stakeholders in divorce as much as their parents. How are children’s wishes made known during a divorce or custody proceeding? In New York state, children in certain cases are entitled to their own lawyers, who represent their interests before the court.  Children’s interests may differ from their parents’.  For example, suppose one parent is emotionally unstable and breaks down at visits with the children, dismaying and confusing them. They are not comfortable and say so to their lawyer, who may speak in court on their behalf.

Duties

The function of the Attorney for the Child (“AFC”) is described in the rules of New York’s chief administrative judge. An AFC represents a child as any other attorney represents a client and conversations between AFCs and their clients are confidential. An AFC has the responsibility to represent and advocate the child’s wishes and interests. AFCs are subject to the ethical requirements applicable to all lawyers, including constraints on: communication with the court without notifying other parties in the case; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the case. In learning the child’s position, the AFC must consult with and advise the child in a way that takes into account the child’s capacities, and the AFC must have a thorough knowledge of the child’s circumstances.

In view of the age of the clients and the sensitive nature of the cases in which they are appointed, AFCs are presented with unique challenges. For example, a parent may “lobby” a child to make negative statements to the AFC about the other parent. As attorneys for children, however, AFCs must act in a manner consistent with proper legal practice and should not assume the role of social worker, psychologist or advocate for one of the other parties. Although they may be tempted to step outside the role of counsel for the child when the circumstances of the case are especially compelling, the rules of good lawyering apply here the same as elsewhere. For example, an AFC may speak with a child’s parent only if the parent’s attorney gives permission to do so.

Boiled down, the rules governing AFCs dictate that they must advocate their clients’ wishes unless doing so places a child in harm’s way. If an AFC substitutes his/her judgment for the client’s for this reason, the AFC must inform the court of the child’s articulated wishes if the child wants the AFC to do so, notwithstanding the AFC’s position.

Private hearing

The judge may wish to speak directly with a child when a case is protracted, has gone to trial or may go to trial.  The judge decides whether or not this will happen. This is not an open hearing. Parents are not there, nor are parents’ attorneys; only the AFC, the child and the judge are present. The hearing is recorded.

Cannot remove AFC

Sometimes parents ask their attorneys to have the AFC removed, as they think the AFC may have taken one side or another.  This will not happen unless there is a true conflict of interest.  The AFC’s taking a position adverse to a parent’s or what the child says is not enough to justify removal.

  Compensating the AFC

In Supreme Court, clients pay for the AFC’s services; in Family Court, the State pays.

 

 

Your divorce case: settlement or trial?

May 2, 2016 by Melissa Rutkoske

TRY YOUR CASE OR SETTLE IT — HOW IS THIS DECISION MADE?

When your divorce case has passed the early stages and progresses to a point where you are deciding whether to go to trial or negotiate an out of court settlement, you have more information than you had at the start of your case. That information may help you decide whether to proceed to trial or negotiate a settlement, but it’s not the only factor. Here you are in one of the most stressful periods of your life (as a stress factor, divorce is second only to the death of a spouse), trying to make a decision in a vortex of legal, emotional and economic components. How do you move forward?

Generally speaking, settlement reduces conflict, stress and expense. In settlement negotiations you control what you agree to and do not agree to. But settlement is not always possible and, if you can do better in court, may not be desirable.

Your lawyer will be a huge help in evaluating your case. An experienced divorce lawyer will be able to do more than just hazard a guess as to whether you’ll have a better outcome in or out of court. Review with your lawyer the factual information developed during the case to assess its merits. Your lawyer will help you understand what can and cannot be proved as fact at trial. Evidentiary rules such as hearsay (a witness cannot testify to something said by another) and the availability of witnesses to testify can limit the information a judge is allowed to consider. The credibility of particular witnesses can affect the probative value of their statements. And of course there’s risk: you do not control the outcomes at trial; the judge does. If trial is looking like a slam dunk, your lawyer can help you answer this question: what if you lose?

Legal analysis is not the only issue. In the decision whether to try your case or settle it, emotions are no small factor. If you lean toward trial, ask yourself why. If your motivation is retribution, redemption, satisfaction or other emotional reasons, acknowledge the emotions — they are your feelings and totally legitimate — then consider the costs and benefits of vindicating them in court. Especially if you have children, ask yourself what your post-trial relationship with your spouse is likely to be. Consider that although you will be a two-house family, you will always be a family, and the two of you will be co-parenting your children together.

Consider also your relationship with your children. If you believe your children will be better off with you than with your divorced spouse, weigh that against the impact of your choice on them. Is a co-parenting plan that you and your spouse agree to in settlement negotiations likely to accommodate their interests better than a judge’s unilateral decision, even though the court is mandated to focus on the children’s best interests? However well-intentioned a judge may be, you know your children better than s/he.

As you size up your case and look into your heart, you may need to look at your checkbook as well. In some divorces, finances play a part in the decision whether to settle or try the case. For lawyers and clients alike, trials are expensive to prepare for and attend. Settlement conferences are generally less costly. Of the small percentage (2-5%) of divorce cases that do go to trial, most are settled during trial. From an economic perspective, trial preparation is to be undertaken only if you truly intend to try the case, or need the leverage of the courtroom to bring your spouse to the negotiating table.

Ultimately it’s your decision. Experienced counsel can help you decide, but at the end of the day, you’re the client and the choice is yours.

 

Divorce: Free Toolkits from Sesame Street Help Parents Help Kids

April 18, 2016 by Melissa Rutkoske

Little Children, Big Challenges

Most parents know Elmo and Cookie Monster, but did you know that Sesame Street offers free resources to help young children through divorce? A toolkit called Little Children, Big Challenges: Divorce provides tools to help youngsters aged 2-8 cope with and understand divorce at an age-appropriate level.

The kit also contains tools for caregivers including parents, grandparents and extended family members. The purposes of the toolkit are to aid families in communicating and expressing feelings around divorce, to reassure children that they will be cared for and that they and their families can learn ways to adjust to their new life and have hope for the future.

Each kit includes:

  • Sesame Street DVD featuring a Muppet story, live-action films showcasing real children and families, and an animated segment
  • Guide for parents and caregivers
  • Children’s storybook

There’s also a smartphone and tablet app for adults: Sesame Street: Divorce.

Toolkits are available from Lazar & Schwartz. You do not need to be a client of the firm to request one. You can preview the toolkit here.

 

 

Kindness During Divorce

February 1, 2016 by Brett Jones

YOU CAN’T GO WRONG BEING KIND IN DIVORCE — OR CAN YOU?

Many couples begin their divorces hoping for a kind and amicable process. Opposing views on this are expressed in these two articles.

You, your children, your spouse, even your family and friends may all benefit from kindness during your divorce process. You might not expect that perspective from a lawyer whose motto is “peace through superior firepower,” but he’s right. James Sexton’s article, Kindness During Divorce, is one view.

Nearly diametrical is 12 Hard Truths I Was Forced to Learn Through My Divorce in First Wives World (truth #5).

These perspectives are their authors’ truths. Unfortunately, there’s not just one. Google “kindness in divorce” and you’ll find a full array of experiences.

Be sure that encouraging kindness during the divorce process does not mean that your attorney will not zealously advocate for your rights and desires as is required under the Rules of Professional Conduct which govern the practice of law. However, kindness around the divorce process can go a long way to securing a satisfactory agreement while helping to keep your sanity through one of the biggest transitions that you and your family may go through.

 

Parents and Divorce: Will We Make it Through the Holidays?

December 10, 2015 by Brett Jones

HELP IS AS NEAR AS YOUR LAPTOP

Whether you are currently going through a divorce or the divorce is now done, holidays and holiday memories, often involving family traditions, can stir up many mixed emotions. Can it ever be happy and bright again? Will your children ever look forward to the holiday season again? While we can tell our clients that they will get through it; they can create new traditions; they can have a happy holiday after all; we know that it might be easier said than done. Here are some resources for managing difficult feelings at the holidays. The first half-dozen articles focus on your children; a second group of articles put the focus on you. The final article focuses on adult children of divorcing parents.

Helping Children of Divorce Through the Holidays

Keeping the Holiday Spirit Alive During Divorce

How divorced parents can help their children survive the holidays

Facing the Holiday Season After Divorce

Children, Divorce and the Holidays

Divorce and the Holidays — Putting Children First

MIFR, a tool that can support you in creating the holiday you want

7 Ways to Create New Traditions For Your Family Post-Divorce

5 Tips on Handling Emotions During the Holidays

5 Tips for Making It Through the Holidays as a Single Parent

Tips for Enjoying the Holidays After Divorce

Holiday Tips for Separated and Divorced Parents

12 Tips for Bringing Light Back to the ‘Hard-Knock’ Holidays

Adult Children With Recently Divorced Parents: 10 Ways to Navigate the Holidays