A “poisonous” mixture? Dealing with Records of or by Minors in Custody Actions | Kohrman Jackson & Krantz LLP

Britney Spears’ ongoing legal affairs

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

However, that has only recently changed. Specifically, in mid-August 2022, Mr Federline posted a series of videos on his social media in which Ms Spears could allegedly be heard arguing with their common teenage sons. The videos had been secretly shot. In Mr Federline’s social media post (which has since been deleted), he admitted the videos were taken by the underage children, although he did not elaborate on how those videos came into his possession. Given the timing of Mr Federline’s social media post, it appeared these videos were posted in response to certain comments Ms Spears had made publicly about Mr Federline and his household.

Ultimately, public reaction to Mr Federline’s social media post was swift, with most jumping in defense of Ms Spears. Indeed, the overwhelming public feedback was that the videos simply showed Ms. Spears raising her children appropriately, as opposed to anything problematic. What’s more, the general public seemed to agree that, if anything, Mr. Federline was out of line for posting the videos in the first place.

Are recordings of minors mandatory in custody cases?

Although these videos of Ms Spears were not posted in connection with an ongoing custody matter, it is not uncommon for these types of videos to appear in connection with such court proceedings. In fact, for obvious reasons, videos and recordings of allegedly misbehaving parents are often offered as evidence in custody cases. But what if these videos or recordings heavily feature and/or are recorded by the minor children, like the videos posted by Mr. Federline? Are such media outlets similarly persuasive in a custody case?

It depends on.

When it comes to media that strongly portrays or was recorded by a minor child, it is generally best to exercise caution when using it in connection with a custody case. This is true for a variety of reasons, but Mr. Federline’s situation illustrates the main reason: using such media can spectacularly backfire.

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

What are the circumstances of the recording?

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

• Why was it done?
• Who was it made by?
• On whose orders was it done?
• When was it made?
• How and when did it come into the possession of the parent intending to use it?
• When the video or recording came into that parent’s possession, what did that parent do in response to seeing the media?
• Who else saw the video or recording?

While these types of inquiries may seem excessive when it comes to media involving minor children in a custody case, it is imperative to conduct a thorough analysis of these and similar issues. This is particularly important for media recorded by an underage child. Ultimately, this is because such media – and especially those recorded by an underage child – put the child directly in the dispute between the parents, which is often prevented with great effort by the courts.

Does the record help or hurt your case?

Second, after reviewing it with a critical eye, is the content of the video or recording as compelling as originally thought? In other words, what is the probability that the content of the media in question will be viewed in a way that is contrary to your desired outcome? For example:

• Does the content seem forced or constrained?
  • This is especially important when the subject of the video or recording is an underage child.

• Is there too much room for interpretation of the content shown in the recording or video? T
  • The videos of Ms. Spears posted by Mr. Federline are an excellent example of why this consideration is important. In particular, a video or recording of a parent yelling angrily at their child could be interpreted as either verbally abusive parental behavior or appropriate parental discipline, depending on the content released in the media.

• Does the video or recording present everyone involved in a less than ideal light?
  • This is a common risk when the media in question shows the parents involved in an argument about the minor child—especially if the minor child is present at the altercation.

• Is the video or recording an attempt to get the minor child to express their wishes in connection with the custody process?
  • Not only is this type of content often frowned upon by courts, but it may also be disregarded by courts in the context of an Ohio custody case.

While the above points are not exhaustive, they 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 related to the custody battle worth the potential risks involved? Obviously, the answer to this question will depend on the individual facts of each custody matter, as well as the particular media outlet involved. Unfortunately, despite all this – and regardless of the facts – such a statement will never be as accurate and dry as one would hope. However, conducting the various analyzes presented here will no doubt provide at least a helpful road map for determining how to answer this question and ultimately deal with these types of media.

The Importance of Obtaining an Experienced Child Custody Attorney

Additionally, having an experienced attorney by your side can be invaluable when it comes to having such intimate discussions. Not only does an experienced child custody attorney have the legal expertise needed to assist you in preparing your case, but he or she is also best placed to view this type of media with the neutral and critical eyes needed to steer you in the right direction.