There are many couples who are able to end their divorce amicably, but for others, it becomes a battle – especially when it involves child custody battles. When there are children involved in these bitter custody battles they become pawns in the game that is being played out. Parents are ‘arming’ themselves any way they can. More recently, recording children for custody battles has become the weapon of choice. The problem is, children become collateral damage when parents are intent on firing at one another.

Desperate parents are increasingly resorting to filming or recording their children in an attempt to win custody battles in bitter divorce cases, UK lawyers have said. In an effort to gather evidence against their ex-partners parents are using mobile phones and tablets to record their children. But lawyers have warned that the tactic can backfire, with recorded interrogation leaving children “exceptionally distressed”or causing the parent to lose their case.

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Smartphones Don’t Always Have ‘Smart’ Users in Custody Battles

Such actions were almost unheard of five years ago but have increased rapidly to the point where lawyers say they are seeing cases on a weekly basis. Parents are openly making recordings and even posting them on social media such as Facebook. If they cannot gather evidence against their ex openly then they are resorting to covert means. Using a phone to record conversations with their children has become easier with smartphones and other digital technology.  One major law firm said many of their clients were coming to meetings already equipped with recordings.

Cara Nuttall, a partner at JMW Solicitors in the United Kingdom, said: “Many often fail to recognise how harmful such behaviour can be, or how negatively it can impact on their case. “Their aim is to try to ‘prove’ to the court the child’s wishes and feelings that they prefer to spend time with them or don’t like being with the other parent. . .Smartphones and other technology make it extremely easy to record a child, and many see this as the best way to prove their point. But it is rarely the answer and the manner in which it is done tends to do more harm than good.”

It is not just in the UK where this has become an issue.  A British Columbia judge has ‘divorced’ himself from some B.C. parents he had been in a courtroom with for more then three years. Canadian provincial court judgecustody battles, child custody, parenting arrangements, divorce, separation Bryce A. Dyer ruled on June 14 that the pair would have to bring their custody disputes to another jurist. “The time has come for me to direct that I will not in future hear matters pertaining to these parties,” he wrote, “unless there is some emergent situation and no other judge is available.” He’d had enough of their conduct and inability to compromise.

His judgment was particularly critical of their communication strategies. He described the father’s “filming of events as proof that they occurred as a defence against the Mother’s untruthfulness” as a “heavy handed” measure. Conversely, Dyer decried the mother’s habit of directing her ex’s emails to her junk folder as “sheer nonsense.” Dyer ordered the father to stop filming events and the mother to start reading emails. “This is not rocket science,” the judge wrote, “but unhappily compromising is a concept that these two parents seem to struggle with at times.”

Just Because You Can Do Something Doesn’t Mean you Should

In Australia there are various Privacy Acts. They are Commonwealth, State and Territory data protection laws. Aside from the risk of breaking data protection laws, recording children and harassing them with questions to use as evidence in custody battles can leave them upset.

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In a ruling Mr Justice Peter Jackson said: “It is almost always likely to be wrong for a recording device to be placed on a child for the purpose of gathering evidence in family proceedings, whether or not the child is aware of its presence. This should hardly need saying, but nowadays it is all too easy for individuals to record other people without their knowledge.”

Ayesha Vardag, president of London based firm, Vardags, said: “Parents filming themselves interrogating their child about the other’s parenting style is never a good thing, and often descends into putting words into their mouth. It harms the child’s welfare and gives the court nothing of value.”

Putting Children First

When divorcing and working out parenting arrangements, the welfare of the child needs to be the first consideration. Moving past your own anger and hurt in a divorce takes time. But in the meantime, those that are most vulnerable need to be protected from the volatility in relationship that may have been there prior to divorce.

“There’s a lot of research that shows diminished parental awareness in the months and even years after separation,” says child psychologist and researcher Dr Jennifer McIntosh. “Many parents are very preoccupied and stressed. They’ve just lost their own attachment figure and there’s a lot of sadness and anger and, for a certain percentage, there’s fear.”

custody battles, child custody, parenting arrangements, divorce, separationWhile their parents’ separation will always be an enormous loss for children, McIntosh says the idea that it’s inevitably harmful is not one she agrees with. “There are a minority, but an important minority, of children who do better after their parents separate,” she says. “They are free from toxic levels of difficulty between their parents and they can begin to thrive in a better environment.” What it boils down to is the amount of acrimony and conflict that accompanies the split.

“Conflict for me is the behavioural manifestation of parents’ contempt, mistrust or disregard for one another,” McIntosh says. Children know when their surroundings are charged with rancour. Even babies pick up on a mood, and soak up contempt in the atmosphere the way a passive smoker inhales toxins. “I think the parents who do well, who create an environment for children to thrive after separation, are those who move on through the emotions and let the toxic ones go,” McIntosh says.

“A cooperative parental relationship and a history of warm, active parenting before separation are key to school-aged children doing well in any care arrangement,” McIntosh says. What children need after their parents separate is exactly what they needed before – a secure emotional base. This is the responsibility of parents.  If parents are taking that responsibility seriously then putting aside the weapons of divorce is a must. Recording children for custody battles is usually driven by a desire to ‘win’ the child. When we carefully and logically think about what will be a ‘win’ for our children, our ability to compromise with our exes can be made easier and our children will be far better off than they were in the center of the battlefield.

At Divorce Lawyers Brisbane we work to keep conflict low in divorce and aim to help parents negotiate a parenting agreement which focuses on the best interests of the child. We offer a free, 10-minute phone consultation with our experienced divorce lawyers. Please contact us today!