A ‘Toxic’ Combination? How to Handle Recordings of or Made by Minor Children in Child Custody Lawsuits

September 7, 2022

Britney Spears’ Ongoing Legal Matters

In recent years, there has been no shortage of news coverage about pop singer Britney Spears and her ongoing legal matters. Notably, despite the very public nature of the turmoil that has surrounded Ms. Spears for quite some time now, there have been very few, if any, publicly identified legal custody disputes pertaining to the singer’s two (2) minor sons from her marriage to ex-husband Kevin Federline. In fact, Mr. Federline has, for years, been virtually silent – at least publicly – about Ms. Spears, her ongoing legal matters, and/or their shared children.

However, that all changed very recently. Specifically, in mid-August 2022, Mr. Federline posted a series of videos to his social media in which Ms. Spears could allegedly be heard arguing with their shared minor sons. The videos had been filmed covertly. In Mr. Federline’s social media post (which has since been deleted), he acknowledged that the videos were recorded by the minor children, although he did not elaborate as to how these videos ended up in his possession. Given the timing of Mr. Federline’s social media post, it appeared that these videos were posted in response to certain comments that Ms. Spears had made publicly about Mr. Federline and his household.

Ultimately, the public response to Mr. Federline’s social media post was swift, with most jumping to Ms. Spears’ defense. Indeed, the overwhelming public feedback was that the videos simply depicted Ms. Spears appropriately parenting her kids as opposed to anything problematic. Moreover, the public, generally, seemed to agree that, if anything, Mr. Federline was out-of-line for even posting the videos in the first place.

Are Recordings Taken by Minors Compelling in Child Custody Cases?

While these videos of Ms. Spears were not posted in connection with an ongoing child custody matter, it is not uncommon for these types of videos to surface in connection with such lawsuits. In fact, for obvious reasons, videos and recordings of parents allegedly behaving badly are commonly offered as evidence in connection with child custody cases. But what about when these videos or recordings heavily feature the minor children, and/or are taken by the minor children, like the videos posted by Mr. Federline? Is such media similarly compelling in a child custody case?

It depends.

As a general matter, when it comes to media that heavily features a minor child or was recorded by a minor child, it is best to tread lightly when utilizing the same in connection with a child custody case. This is true for a variety of reasons, but Mr. Federline’s situation exemplifies the main reason: using such media can backfire spectacularly.

To this end, it is important to consider and be able to satisfactorily answer the following three (3) categories of questions when determining how to handle this type of recording or video in a child custody matter.

What are the Circumstances Surrounding the Recording?

First, what are the circumstances surrounding the video or recording? Specifically:

  • Why was it made?
  • By whom was it made?
  • At whose direction was it made?
  • When was it made?
  • How and when did it come into the possession of the parent who intends to utilize it?
  • When the video or recording came into the possession of said parent, what did that parent do in response to seeing the media?
  • Who else has seen the video or recording?

While these types of inquiries may seem like overkill, when it comes to media involving minor children in a child custody case, it is imperative to complete a comprehensive analysis of these and similar issues. This is especially important for media that was recorded by a minor child. Ultimately, this is because these types of media – and media recorded by a minor child, especially – place the child squarely within the dispute between the parents, which is something that courts often work very hard to prevent.

Does the Recording Help or Harm Your Case?

Second, is the content of the video or recording as compelling as originally believed after reviewing the same with a critical eye? Put another way, what’s the likelihood that the content of the media at issue could be viewed in a way that is adverse to your desired outcome? For example:

  • Does the content seem forced or coerced?
    • This is an especially important consideration when the subject of the video or recording is a minor child.
  • Is there too much room for interpretation of the content displayed in the recording or video? T
    • The videos of Ms. Spears posted by Mr. Federline provide a great example of why this consideration is important. Specifically, depending on the particular content featured in the media, a video or recording of a parent angrily yelling at his or her child could be interpreted either as an instance of verbally abusive parental behavior or as an instance of appropriate parental discipline.
  • Does the video or recording portray everyone involved in a less than ideal light?
    • This is a common risk when the media at issue depicts the parents engaging in a dispute about the minor child – especially when the minor child is present for the altercation.
  • Does the video or recording represent an attempt to have the minor child voice his or her wishes in connection with the child custody proceeding?
    • This type of content is not only often frowned upon by the court, but the same, by statute, cannot be considered by the court in connection with a child custody proceeding in Ohio.

While the points above are not intended to be comprehensive, the same do illustrate some of the common issues presented by such media.

Is it Worth the Risk?

Third, and finally, is the potential benefit of offering or otherwise presenting the video or recording in connection with the child custody lawsuit worth the potential risks of doing so? Obviously, the answer to this question depends on the individual facts of each and every custody matter as well as the particular media at issue. Unfortunately, despite the same – and regardless of the facts – making a determination such as this will never be as cut and dry as one would hope. However, performing the various analyses set forth herein will, no doubt, at least provide a helpful roadmap to determine how to answer this question and, ultimately, handle these types of media.

The Importance of Obtaining an Experience Child Custody Attorney

In addition, having an experienced attorney on your side can be an invaluable asset when it comes to making these types of close calls. Not only does an experienced child custody attorney have the requisite legal expertise to assist you in preparing your case, but he or she is also best positioned to view these types of media with the neutral and discerning eyes necessary to guide you in the right direction.

If you’re experiencing these or any other types of issues in connection with your divorce or child custody case, you don’t need to go through it alone. If you need guidance on divorce, dissolution or other domestic relations matters, please contact Janet Stewart Scalley at (JS@kjk.com; 216.736.7261) or another member of the KJK Family Law Team, by phone at (216) 696-8700.