DIVORCE: THE SURVEILLANCE OPTION

(Published in Divorce Magazine May/June 2006)
By Rick Johnson Rick Johnson & Associates of Colorado, Inc.

The first rule for anyone considering hiring an investigator to conduct surveillance before, during, or after a divorce is that surveillance is almost always potentially unproductive and sometimes a dangerous option – not dangerous in a physical sense, which is rarely the case, but dangerous in that it can complicate, rather than, simplify the process, especially where the risk of exposure is ignored.

The most obvious time when surveillance is requested obviously is at some point when one spouse suspects that the other spouse is having an affair. Quite often in my 30 years of experience, a spouse already has enough information to know what’s going on and really is just looking for independent validation. That’s a poor and expensive reason for surveillance. But there are valid pre-divorce reasons for surveillance.

We may be conducting surveillance in Denver for a spouse who lives in another state in the case of the other spouse who, in the guise of regular business trips, is having an affair in Colorado.

A no-fault law may apply, but the issue could be to identify the other party in order to determine whether marital assets have been diverted to that party and need to be accounted for.

There clearly are times, of course, when simple suspicion needs to be put to the test. There may be no clear cut evidence at hand. The possible wayward spouse may be strongly denying the affair. And the suspicious spouse may need validation in order to attempt a reconciliation, rather than to precipitate a divorce. In other circumstances, a couple may have reconciled a previous infidelity or other marital problem and now one or the other suspects that the problem has arisen again.

During and even after a divorce, where children and shared parenting time are at issue, surveillance can be necessary to determine whether one or the other of the parties is living up to the terms of the separation agreement, in one instance, and the divorce decree in the other.

A mother may suspect that the ex-husband is dropping off his children on visitation days with a third party and going off to work or to play golf, as usual, in violation of the decree. The ex-husband, or even the third party, may present a risk; for example, an ex-spouse or that person’s boyfriend or girlfriend may have a drinking problem, as evidenced by DUI convictions. Children in the custody of a potentially drunk driver is a critical concern. A father may have the same concerns.

In any case when surveillance is contemplated, there are serious considerations regarding privacy, propriety, and confidentiality. And there may be serious legal issues to consider.

No party to a divorce, after the process is completed, can request (and expect a responsible investigator to provide) surveillance of any kind on some non-specific desire by one party to “check up on” the other. The same goes for one party’s interest in the other party’s new mate. There can be precious little difference in such cases between surveillance and stalking.

No responsible investigator will agree to trespass or illegally record or eavesdrop upon someone in the guise of a marital dispute, or illegally pry into Email or other computer-related files.

With a legal basis for surveillance, there still are issues.

The surveillance must provide some reasonable basis for success. A specific starting point and a reasonable time frame are essential. Trying to pick up the subject of surveillance in a broadly public place with multiple access points and no specific range of hours when contact could be made is merely an expensive exercise. These would include locations with secure indoor parking, office structures, particularly those in a downtown area, and major sporting events.
In any case when surveillance is contemplated, there are serious considerations regarding privacy, propriety, and confidentiality. And there may be serious legal issues to consider.

Sometimes surveillance requires two or more investigators, sometimes even teams of investigators. A major hotel is one such place, but the most obvious place where teamwork and experience count for everything is Denver International Airport, where coverage can include the terminal, baggage pick-up, parking, car rentals, and access roads.

Even a good starting place and time is no guarantee of success; for example, a spouse leaving home in the early evening after dinner for a night out with the boys or the girls, with a probable destination in mind. That’s a common circumstance. But then expected traffic conditions and the subject’s driving style need to be accounted for. Contrary to the movies and television, investigators don’t go speeding willy-nilly through traffic, ignoring red lights and stop signs, endangering life and limb of themselves and bystanders. Even under ideal circumstances, traffic conditions can cause surveillance to be lost.

In another example, a strange vehicle sitting for long periods of time in a quiet residential neighborhood can draw the attention of nearby neighbors, who, more often than not, will call police to investigate the strange vehicle. Someone may even approach the vehicle to check it out personally. In such instances, surveillance may need to be rotated among vehicles and locations in the area, especially during daylight hours, but it even can be a problem at night.

None of this is to say that Surveillance never is an option. It is to say that it is an option reserved for specific and well-established circumstances where it is essential, justified legally and ethically, and likely to produce results.

Frequently, a valid request for surveillance also includes a request for video or photographic evidence. That may be the best evidence, certainly, but it isn’t always possible. Nighttime video or photos simply are out of the question. Any attempt will fail, not necessarily because video or photos can’t be obtained, but because any video or photos obtained won’t clearly identify the parties, vehicles, locations, any of the specific attributes that make video or photos truly useful.

Equipment is available that will permit video in many types of public locations; for example, a camera lens that looks like a watch or pager, with a small recorded secreted on the investigator’s person. A small lens and recorder can be hidden in what looks like a handbag, briefcase, or gym bag.

In any case, the use of video equipment and still cameras must be in places and under circumstances where the use is a normally expected activity, sufficiently disguised as to be unnoticed, and never under circumstances that constitute a violation of privacy.

Finally, it often is the case that requests for surveillance really turn out to be best served by a background or asset investigation, which certainly are less intrusive and probably more cost effective.

Surveillance may be an option, but it almost never is a first option.

 

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