Every client obviously wants to give their attorney the best possible evidence to use in support of their case. Even attorneys get a sense of excitement when they find that one piece of evidence they can’t wait to show the judge. However, we’ve noticed a concerning theme that keeps popping up in our office, specifically with custody cases.

With a desire to win their case, parents are secretly recording private conversations with their children, hoping the child will say something we can use in court. Maybe the child says they want to live with Mom instead of Dad. Or maybe they tell Dad that they don’t trust Mom’s new boyfriend. In some cases, they may even say something more serious that can incriminate or exonerate one of the parties.

The truth is, we cannot use a secretly obtained audio recording as evidence in court. Pennsylvania’s Wiretapping and Electronic Surveillance Control Act makes clear that it is a third-degree felony to audio record anyone without the knowledge and consent of all the participants to the communication. Not only could a violation of this law result in criminal charges, but it could also completely ignore the “evidence” presented.

In most cases, recorded statements of a child are not useful in court. Likely, judges will automatically discount the recording and presume a child is just saying what they know their parent wants to hear. Even if the child says they lied about something in the past, this is not strong evidence. The judge has no way of knowing whether the child was lying before or is lying now to get out of trouble with their parent.

Parents who try to record their children run several risks. First, it comes across as though you are interviewing or even interrogating your child. Remember, the primary focus in a custody case is to do what is in the best interests of the children. Judges will not be impressed by parents who are secretly interviewing the children. Even with the parent’s best intentions, it just comes across as manipulating the child. This frequently places undue stress on the children, who are placed in the middle of a heated custody battle.

This is not to say that every recording is useless. In cases where we are concerned with physical or sexual abuse against a child, we recommend taking the children to the authorities so the police can intervene. If the police believe a child’s testimony is an important piece of evidence, they can set up an interview with a trained professional who will speak with the child in a controlled setting.

Think of it this way: If the police or a judge believe you have any influence over your child’s comments, it could discredit everything your child says. In cases concerning physical or sexual abuse of a child, the last thing a parent wants is for their child to be ignored simply because the authorities cannot separate the child’s statement from the parent’s.

The takeaway from this blog is that you should not record private conversations with your children. At best, the conversation will not be admissible as evidence. More serious cases could expose you to criminal charges for violating Pennsylvania’s Wiretapping Act. The worst possible case would be that your child needs help, but the authorities cannot act because the evidence has been ruined by your involvement.

If you or anyone you know has a custody issue where they need assistance, all of our attorneys are ready to help. Please contact our office so we can set up a consult and discuss your concerns.