It is important to know that your attorney cannot be a witness to your case. This means that if you suspect your spouse is earning undeclared income that would affect Child Custody your attorney cannot drive around and observe these activities. Why is this? The short answer: it is your attorney’s job to advocate your case and examine witnesses. If your attorney becomes a witness, he has to take the stand and ask himself questions and then be examined by the opposing attorney. This is improper and ill-advisable.
We often associate the use of private investigators with proving whether or not a spouse is being unfaithful. However, infidelity is not a basis for divorce because California is a “no-fault” divorce state. However, if a spouse is engaging in a relationship with an unknown individual, and custody is an issue, it is important to know who that person is because they may potentially be around the children. If that person has a criminal record, history of domestic violence, and/or substance abuse, these are serious factors that both parties and the court need to be made aware of when determining custody.
When Should I Hire a Private Investigator?
Whenever there is a suspicion of activities or finances that are not being disclosed, it is important to consult with an experienced family law attorney to determine whether or not a private investigator should be hired. At some point in the divorce process, it may become necessary to present evidence to the court in order to reveal that a spouse is hiding assets or another issue.
As with any other legal matter, family law require that evidence presented complies with California’s Evidence Code. The Evidence Code has specific rules and regulations as to what evidence may be presented. This includes how the evidence was obtained in order for it to be admissible in court.
The use of an experienced private investigator, under the direction of an attorney, ensures that evidence is gathered in compliance with the Evidence Code and securing its admissibility in court. Too often, people make the mistake of thinking that they can gather this evidence themselves, only to discover that they obtained the evidence in a manner that is not permissible and disallowed by the court.
Unlawfully Retrieved Evidence Cannot Be Admitted
A common situation would be if a person suspects that their spouse’s email contains incriminating evidence. They know their spouse regularly uses the same password for email, Facebook, and Twitter. They open their spouse’s email using that password, discovering that their suspicions were correct and print off the incriminating evidence.
They then produce this evidence to the court in order to increase alimony payments on the basis that their spouse earns far more than he or she was reporting. The problem, however, is that the judge will not allow this evidence to enter the record because the spouse’s privacy was wrongly breached and the email was obtained illegally. Now, it cannot be considered in the determination of spousal support.
It is important to remember that a private investigator is hired for the sole purpose of gathering evidence. A person may only have a rumor or hunch, which would not be enough in a court of law, but is worth investigating. It is better to discuss these feelings with your attorney to determine whether the services of a private investigator are needed in order to validate the legitimacy of those rumors or hunches.
Should I Tell Anyone That I Am Using a Private Investigator?
One of the main advantages of hiring a PI is that the investigator is unknown to the opposing party. Unfortunately, when we tell people confidences—even our best friends or family members—word tends to spread. It is important to err on the side of caution and avoid informing anyone of your intentions to hire a private investigator. If the opposing party is alerted to the possibility that a private investigator may be assisting your case, typically they will alter their behaviors and routines. This only serves to make the investigator’s job more difficult and may lead to wasted time, resources, and money.
Should I Hire the Private Investigator Directly?
Too often, a husband or wife who suspects that information or activities are being concealed by their spouse will hire a private investigator directly. This is a mistake.
There are rules regarding confidentiality and privilege in California that are not generally established between a private investigator and the client. However, when an investigator is hired by an attorney on behalf of a client, the rules governing attorney-client confidentiality are extended to the private investigator. This means that any materials, documentation, and evidence produced by the investigator in preparation for trial may be protected by being discovered by the opposing side.
This is commonly referred to as “attorney work product.” Furthermore, as was mentioned above, a private investigator should be directed by an attorney. This ensures that evidence is gathered and documented properly and in compliance with California evidence laws. The attorney is then able to review the information that is collected and determine the best course of action for moving forward with the client.
What Happens with Information the Private Investigator Collects?
Not all evidence that is gathered by a private investigator may be beneficial to a family law case. An evaluation of the case with an experienced family law attorney will help determine whether hiring a private investigator is worth the client’s time and money. As discussed above, when a private investigator is properly hired and managed by an experienced family law attorney, the information collected is protected under the attorney work product doctrine. This ensures that the information remains private and may not be disclosed to the opposing party or any third party without the client’s authorization.
I Can’t Afford a Private Investigator…Should I Hire My Friend?
It is highly unadvisable to hire friends or family who are not licensed private investigators to handle surveillance and evidence collection. Almost all of us have that friend who is an amateur photographer or believes that they are savvy enough with technology to covertly obtain evidence. This is a recipe for disaster that could expose a client to civil, and possibly criminal, liability.
It is illegal to engage in wiretapping and email hacking under both federal and California laws. Furthermore, there are laws against trespassing and harassment that must be strictly adhered to when engaging in private investigation. Private investigators are professionally licensed and are under the direction of attorneys to ensure that these laws are respected and in compliance during an investigation.
Even in the instance that a friend abides by all laws and legally obtains evidence, there are additional factors that may affect the admissibility of that evidence in court. For example, investigators have training and experience that they may rely on while gathering evidence, which may qualify them as an expert witness and allowing them to form an opinion as to their observations.
A friend is not an expert in surveillance and evidence collection, so they would not qualify as an expert witness, which would prevent them from offering an opinion or speculation as to the nature of their findings. An expert opinion regarding evidence can be as valuable as the evidence itself—hiring a friend would be throwing away half of the advantage.
Finally, as a matter of practicality, friends are often known to the spouse, which leads to their presence being known quickly. Once a former spouse is tipped off that someone is following and documenting their activities, they will surely change their behaviors and habits, which damages the ability to gather reliable evidence. It is important to discuss the possibility of using a private investigator with an attorney who can direct and manage all aspects of the investigation in a manner most beneficial to the client.
I Suspect My Spouse Is Cheating…Should I Hire a Private Investigator?
As mentioned above, unfaithfulness by a spouse is not relevant in a California divorce case. California is a “no fault” divorce state and infidelity cannot be a basis for divorce. However, while the cheating itself may not be a basis for divorce, an investigation into the nature of that relationship may have an effect on other issues presented in the case. This may include custody, visitation alimony, and property division.
For example, suppose a spouse is unfaithful and has been conducting a long affair. Furthermore, suppose that he / she does not work and is asking the court to award them support from their high-earning spouse in order to maintain a lifestyle and standard of living. An investigation into the affair may reveal the husband or wife’s intention to quietly marry the other individual once divorce is finalized. This would have an eliminating effect on their ability to collect future spousal support due to the remarriage.
In the case of child custody, an investigation into the nature of the affair may have an effect on the unfaithful spouse’s determination of custody or visitation rights after separation. If you suspect that your spouse is engaged in an extramarital affair, it is important for the child’s interests and safety to investigate who that person is and their background. An investigation may not reveal anything, but there may be a chance that this person has a criminal record or history of domestic violence and/or drug use.
These are serious and considerable factors that will affect child’s rights.
Third, in the case of property, an investigation into an extramarital affair may reveal the concealment or unlawful ‘gifting’ of marital property to a third party. When dealing with property issues, it is important to remember that each spouse has a duty to the marriage, or “community,” to safeguard each other’s property. This is why there are automatic restraining orders that go into effect as soon as a petition for divorce is filed. If you suspect that your spouse may be passing community property to their extramarital partner, a private investigator will assist in proving these actions, aiding your case for recovery.
How Can a Private Investigator Help with Child Support / Custody?
As mentioned above, a private investigator may assist with collecting vital information that affects child support, custody, or visitation rights of the parents. Again, in the case of one spouse who has a new boyfriend or girlfriend, the investigation may reveal information about that partner’s history or criminal record that could help protect the best interests of the child. Beyond the issue of investigating new partners, private investigators may also assist in child support and custody matters in the following ways:
For example, suppose that a wife a strong suspicion that her husband tends to drink and drive while the children are passengers in the car. An investigator can be hired to follow the father to a bar, observe the father drink several alcoholic beverages and then pick the children up from school while under the influence. An investigator would document this behavior with notes and audio / visual equipment and allow the mother to present this evidence in court to demonstrate the danger to children’s safety and well-being.
Not every case may have examples of this extreme child endangerment. Smaller issues, such as, allowing the children to ride without a seat belt is evidence of reckless behavior that may affect custody rights.
It is possible that one spouse’s dating habits and behavior creates a situation that compromises the safety and best interests of the children. For example, if one spouse has weekend custody and leaves the minor children unattended in the evenings while she goes out on dates with her new boyfriend, this evidence gathered by an investigator may be grounds to revisit and amend the child custody agreement.
What Is a Private Investigator Permitted to Do?
There are strict laws that must be adhered to at all times during a private investigation. Failure to obey these laws opens the door to civil and criminal liabilities. Additionally, evidence that is obtained in violation of these laws makes that evidence inadmissible in court.
This results in wasted time and money and, worse, places a client at a disadvantage.
Private investigators may utilize techniques involving surveillance and information collection. It is illegal to engage in wiretapping without consent from the targeted person. A private investigator may videotape or photograph anything that is visible in public because there is no “expectation of privacy.” However, there are laws that regulate whether or not private conversations, even in public, may be recorded.