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.