NEWS & VIEWS

Family Law Matters - When to Hire a Private Investigator

By: Rick Johnson

Most divorces move along without great difficulty, with both parties having a mutual desire to resolve family and economic issues as fairly and as reasonably as possible. But this is not always the case. Sometimes the right direction isn’t obvious, especially in the heat of the moment. Sometimes problems such as drugs, excessive drinking, stalking, or abuse are further amplified when a third party is involved, especially when children are exposed to the risks that the third party presents.

Not every divorce needs an investigator – but many do. Not every investigator is qualified for the work – but many take it on anyway. In a state such as Colorado, where investigators are not licensed or otherwise regulated, there is a real potential for unnecessary, ineffective, or even inept investigative work. Anyone in the middle of an emotionally charged divorce absolutely must avoid this complication.

An investigator must act as more than a domestic mechanic, whose first recourse is to conduct surveillance. Sometimes, for specific purposes in keeping with what the client’s attorney needs, surveillance might be a useful option – but it is almost never a first option, particularly when a hurt and angry spouse with retainer in hand is the primary motivation.

In fact, the first obligation of an investigator in a domestic situation is more akin to the work of a counselor or, on occasion, that of a therapist. And frankly, in family matters, the client and even the attorney might have completely inaccurate views of what should be done to help and what an investigator can contribute.

Probably half of the people who come to an experienced investigator for help in a family matter leave without hiring the investigator, because they come to realize that what they thought they wanted was unreasonable or simply unproductive. If they do hire an investigator, it is for a good and useful purpose.

The most important considerations are:
When to use an investigator
How to find and hire a qualified investigator
What options might produce useful results
What options might be of no real value
In most cases, the attorney, Not the spouse, should act as the client

These considerations are just the tip of the iceberg; for example, a client almost always wants to know the name of the third party who broke up the marriage. That’s a bad idea. We might see a need to identify the third party and perhaps obtain background information on the third party, especially when children are involved; however, only rarely does the investigator disclose the identify of the third party, and then, it’s to the attorney, not to the client.

Recently in Texas, an investigator on surveillance called the female spouse and informed her that the husband was in a hotel with another woman. The female spouse arrived and, when her husband left the hotel, she drover her Mercedes into him and then back and forth over his body a half dozen times. She was convicted of murder, and the investigating company was sued for substantial damages.

A skilled but Unethical investigator might skirt the law to obtain information that isn’t legally available without a subpoena or court order. The interest is littered with the sites of so-called private investigators, who claim to be able to obtain bank records, unlisted telephone numbers, cell phone records, utility records, medical records, and all manner of other confidential information – some of which is useful in a divorce and some of which is not.

"An investigator must act as more than a domestic mechanic, whose first recourse is to conduct surveillance."

There are investigators willing to illegally intercept and record telephone and cell phone calls. These are investigators who will trespass to obtain information and who will conduct surveillance in a way that crosses the line into stalking.

It’s important enough to repeat: You need to know what is possible and what is useful – as well as what is not.
One of the more achievable and worthwhile options is a background investigation to discover what legally can be known about a third party, particularly when children are involved and when they will come into close contact with that third party. Again, if this information is considered useful, it’s useful to the client’s attorney, not to the client.

The effectiveness of a background investigation depends on the type and extent of the information that’s available to begin with… a name, including a middle initial, a date of birth or approximate age, an address. Even an unusual first or last name can be sufficient. A license plate number can be used to identify the vehicle owner’s name, address, and date of birth. A date of birth is essential in arrest and criminal court inquiries. A name and address can be used in a national records trace to identify a history of addresses. That history identifies jurisdictions where additional research can be conducted. A search of court records, including Federal court cases, can identify matters that might contain helpful personal and financial information.

Update: The Chief Justice of the Colorado Supreme Court has issued an edict that gives local court administrators the authority to restrict access to personal and financial information in certain types of case files, including family case files. This action varies from county to county in Colorado. Personal and financial information remains available in Federal bankruptcy case files.
Third parties aside, it isn’t safe foe one spouse to assume that he or she knows everything about the other spouse. Everyone has a secret life to some extent. Sometimes the clues to that secret life are evident. A man who batters his wife isn’t likely to be doing it for the first time. The unexplained and repeated loss of financial assets can indicate a serious gambling problem. Unexplained absences from the home don’t always mean there’s another woman, but, of course, sometimes they do.

A typical background report can include a Colorado statewide arrest record report; Colorado civil and criminal court records, including a check of sexual offender registry records; a check of Federal civil, criminal, and bankruptcy court records; real property records; Colorado motor vehicle records; and, occasionally, other items. Whatever the case, the goals need to be clearly spelled out. The plan of action needs to be carefully tailored to meet specific goals.

Whether these considerations are met might - and often does – depend on the investigator employed to do the work. At a minimum, that investigator must carry errors and omissions insurance. His or her employees should be covered by worker’s compensation insurance. The company should be a real, legal entity; a partnership, limited liability company, a corporation, or at least a formal sole proprietorship. Although Colorado doesn’t license private investigators, those investigators can be licensed in other states, and they might have an affiliation with a professional association in Colorado and nationally.

If you are thinking of working with a private investigator, start by talking with your attorney, who might be able to refer you to a trustworthy investigator he or she has used in the past. You should meet the investigator at his or her office before making any kind of commitment. At your initial meeting, you really get a chance to evaluate that person and his or her operation. You can judge whether the investigator asks the “right” questions and if it is someone with whom you feel comfortable. The investigator should ask you whether you have an attorney and what your attorney thinks about hiring an investigator. The initial meeting also gives the investigator a chance to find out what you need, not just what you want.

No matter how it begins, virtually every divorce carries the potential for legal, financial, and emotional problems that the parties can’t resolve on their own. That’s why there are attorneys and psychologists – and that’s why there are investigators.

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