Should I be my own private investigator in my Virginia custody case?

Posted on Jun 20, 2017 by Katie Carter

It used to be that private investigators were predominantly used in adultery cases (LINK) but, in recent years, we’ve come to a point where we probably utilize them even more often in custody cases. We can use private investigators to gather evidence on all sorts of custody-related issues necessary to put on a good case at trial. Though you don’t have to use a private investigator in most cases, sometimes the evidence they can provide is helpful. So, we often get the question—Can I (or should I) be my own private investigator in my Virginia custody case?

Private investigators in custody cases

It’s possible, of course. There’s very little that a private investigator can do that you can’t do (except, of course, that he or she has a lot of fancy, technologically savvy equipment to take pictures, record conversations, etc); in fact, most of the time, a private investigator’s job is just watching and waiting for something to happen. Sometimes, of course, things don’t ever happen, and the private investigator has to try again.
It’s always important to talk to your attorney BEFORE you undertake anything big. You’ll want to go over your case with your attorney in detail, and come up with a pretty comprehensive case strategy before you do anything dramatic or unusual. You’ll want to make sure that you understand the key parts of the case (and the key parts of the law) so that the information you’re gathering is relevant and targeted to prove the point you’re trying to prove. You’ll also want to talk to your attorney about whether there are any potential alternative ways of getting the information that you seek.
Without working with an attorney, you’re missing a pretty critical part of the process. It’s not just about catching him at some wrongdoing, it’s creating a comprehensive case strategy that makes sense in light of the laws and proves the point that you’re trying to prove. You’ll want to be familiar with the best interests of the child factors, because, as far as custody cases are concerned, there’s really nothing more important—and know how the information you’re trying to gather fits into the larger analysis of your case.

You don’t know the best interests of the child factors?


You should! In case you haven’t had a chance to study them yet, here they are:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;
2. The age and physical and mental condition of each parent;
3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;
4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;
5. The role that each parent has played and will play in the future, in the upbringing and care of the child;
6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;
7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;
8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;
9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and
10. Such other factors as the court deems necessary and proper to the determination.

Your safety is also a huge consideration

I can understand the drive to gather information yourself in an effort to save money. Still, I have to wonder if you following him around, or trying to gather evidence of your child’s father’s bad decision making, isn’t going to be a problem.
You’ll probably make him mad. Will that also make him physical violent? You know him better than I do, of course, but it’s not worth saving a few bucks if you wind up the victim of a violent assault or something.
Physical violence is only part of the issue. When it comes to custody, your ability to co parent even after your custody case is over is pretty important, too. Keep in mind that the decisions you make now will affect your ability to work together where the kids are concerned, even far into the future. If he thinks you’re just lying in wait, trying to catch him at something, he’s liable to view you with more distrust and suspicion—which could have a significant impact on the way the two of you co parent.
It’s going to be important, especially in a custody case, to tread very carefully. There’s a lot at stake here, and you’re not going to want to take steps that will ultimately hurt your children even more—there’s definitely a risk that, by serving as your own private investigator, you’ll do just that. Besides that, it might make you look like an overbearing mother (especially if you’re spying on him while he has visitation) in front of the judge or the guardian ad litem, which could hurt your case, too.
I’ve heard judges say in several cases that they really don’t approve of mom even listening in on the other side of dad’s phone conversations with the children. Moms are usually not appointed to supervise visitation, either. In these cases, a neutral third party is necessary, and I think that you’ll find that your custody case is safer if you use a third party instead, too.
Of course, the first step is to talk to a licensed, experienced, Virginia custody attorney about your case. Come up with a reasonable case strategy that makes sense, and then figure out how you’re going to gather the evidence you’ll need to win your case. Take care to think about the best interests of your children first (even if that means that you have to play it a little safe). In the long run, that will be your best course of action.
You could be your own private investigator, but not without risk—to you, your children, your ability to co parent, and, ultimately, to your case. Work with your attorney to determine whether a private investigator might be necessary in your case, and work from there. Private investigators in custody cases are sometimes (but not always) necessary, and you’ll want to take steps to make sure that your choices are as carefully calculated as possible.  For more information, or to schedule an appointment with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at (757) 425-5200.