The Custody Case and the Backyard Camera
Fayette County custody case. The father's attorney hires you to document whether the mother's boyfriend - a convicted felon on supervised release - is living in her home, which she denies in an affidavit. The home sits on a one-acre lot behind a six-foot wooden fence with a closed gate marked "No Trespassing." You do three things: (1) accept a 22-minute recording of a phone call between the mother and the father's sister, made by the sister without telling the mother; (2) while the mother is at work, open the gate, walk to the patio, and zip-tie a trail camera to a fence post aimed at the back door, which records eleven days including the boyfriend entering at night; (3) park on the street and use a shotgun microphone to capture the mother talking with a neighbor 40 feet away. The video clearly shows the boyfriend. The mother's attorney moves to exclude everything and threatens criminal charges.
1. Classify each of the three collection methods as lawful or unlawful, with the reasoning a hearing officer would follow.
Read the worked answer
(1) The sister's recording - lawful. Kentucky's eavesdropping statute (KRS 526.010 and 526.020) bars recording a communication without the consent of a party. The sister was a party to the call, so she could record it; the mother's lack of consent is irrelevant. Handing the recording to you does not make it unlawful.
(2) The trail camera - the serious problem. Opening a closed gate marked No Trespassing and walking to the patio is entry onto premises without consent. Depending on posting, fencing and warning, that can constitute criminal trespass under KRS 511.060 through 511.080, and it is textbook intrusion upon seclusion, because a court will readily find a reasonable expectation of privacy in a fenced backyard. The video is probative, but it was obtained by unlawful entry, and the exposure runs to you personally as well as to the client's case.
(3) The shotgun microphone - assume it is unlawful. No party to that sidewalk conversation consented, so the statutory consent element is not satisfied. Whether the statute reaches conversation audible in public depends on the definitions and the expectation of privacy; do not gamble on the distinction. Note the contrast: recording your own interview with the neighbor would have been lawful, because you would have been a party.
2. Map the lawful path to the same information, and identify who should receive it.
Read the worked answer
The information was available lawfully and cheaply.
- Cohabitation. Sustained surveillance from public vantage points - street, sidewalk, or a neighbor's property with written permission - capturing comings and goings, overnight vehicle presence, and patterns. That is what a family court actually credits.
- Records. Property tax and deed records, voter registration, court records, and, through counsel's subpoena, the supervised-release file and any probation reports. Counsel can subpoena the utility for service records; you cannot pretext for them.
- The probation officer. If the boyfriend's supervision status is the real issue, the officer is the correct channel and may act on a documented report far faster than a custody motion.
- Witnesses. Neighbors, the homeowners' association, and a process server who has been to the door.
The governing principle: where the law gives the client subpoena power, use the subpoena. Pretext and trespass are substitutes for process, and they convert a clean custody argument into a defense motion. Route findings to the retaining attorney, who decides what is filed; do not deliver raw video to the client directly.
3. If counsel offers the video anyway, how do you establish foundation, and what do you tell the attorney beforehand?
Read the worked answer
Testify about process, not persuasion.
Foundation. Identify the camera, the date and time you placed it, the date and time you retrieved it, the storage card, and the fact that the file has not been altered. KRE 901 requires evidence sufficient to support a finding that the item is what it purports to be; your testimony as the person who made and preserved the recording satisfies 901(b)(1). Bring the unedited original, the original card, and a log showing every time the camera was touched.
The cross that matters is "How did you get onto the property?" Answer directly and do not shade it. The court will hear it from the mother regardless, and an admission from you is survivable while a caught evasion destroys your credibility on everything else.
Advise counsel in advance. The attorney should hear the exclusion risk from you before the hearing, not from opposing counsel at it. Explain that private conduct is not excluded by the Fourth Amendment - that rule governs state action - but the court retains authority over its own process, and a family court presented with a trespass can sanction the party, exclude the product, or both. If the video is excluded, the case can still rest on public-street surveillance, records, and the sister's lawful recording.