A father representing himself in Bristol Probate Court has managed to successfully appeal that court’s judgment in his custody case.
Prior to trial the father filed a motion seeking to use video evidence which allegedly showed the child’s mother striking both the child and the father.
The judge asked the father if the mother consented to being recorded.
When the father answered in the negative, the judge said “Let me say this. In this courtroom unless the other party has agreed to the video or recording, I shall not hear it.”
The father went to trial without the video evidence.
The judge awarded sole custody to the mother and the father appealed.
Today the Appeals Court issued a slip opinion vacating the judge.
In the slip opinion, the Appeals Court writes,
if not otherwise prohibited by law, a video recording of domestic violence perpetrated by a parent against a child or the other parent should be admitted so the judge may examine it and take it into account. Before excluding evidence alleged to have such content, the judge therefore must at least review it.
The justices go on to say,
The judge did not spell out his reasoning, but he seems to be referring to the wiretap statute, G. L. c. 272, § 99. Assuming “interceptions,” as defined in the statute, may not be admitted in civil proceedings such as this, however, permission is not always required to render recordings admissible. Only “secretly recording” someone creates an interception. As the Supreme Judicial Court has explained, and as the self-represented father actually argued below, “[a] recording that is made with the actual knowledge of all parties is not an interception, even if they have not affirmatively authorized or consented to it.” Commonwealth v. Boyarsky, 452 Mass. 700, 705 (2008).
Thus the court concludes,
given the description father gave of the video recording, and the fact that it was excluded based on an erroneous reading of the wiretap statute, the case will have to be remanded for the judge to view the video recording and determine what it shows and whether it warrants vacatur of the order and further proceedings.
The full text of the slip opinion is attached below.