Should I Hire a Private Investigator for My Divorce and Child Custody Case?

Private investigators can be useful in certain divorce and child custody cases. Before hiring an investigator, the critical issues that should be considered are (1) what role the investigator should serve in the case and (2) whether an investigator is really needed.  Here are the typical reasons we or our client retain an investigator.

Backgrounds Checks

A good investigator will have access to databases to review a person’s criminal history, litigation history, and owned property shown in public data bases.   The internet provides some of these resources already so we are using investigators less for this purpose, but good investigators may still provide some additional resources not available to the public.

Process Service

On a few occasions, one of the parties or a witness is reluctant to cooperate in receiving court papers or subpoenas.  A private investigator can serve those documents much quicker than local law enforcement, especially when the person does not live in the county where the action is pending.

Interviewing Witnesses

On occasion, we have retained private investigators to talk with witnesses who may be more willing to talk to an investigator than a party or their counsel.   If a witness is willing to provide information voluntarily, there probably is not a need to retain an investigator.

Active Surveillance

Active surveillance is following someone to see where they go and what they are doing. Although this is what most people think of when they think of a private investigator, we find that the value of active surveillance is often not worth the time unless the investigator has a very clear objective.

For example, if the goal is to determine where a person is living, an investigator could simply follow the person from their place of employment.   If the goal is to determine whether a person is consuming alcohol and has a history of frequently being a particular bar on a certain day, the investigator could visit the bar and observe the party.

If the goal is simply to “dig up dirt” on a party, then active surveillance may be expensive and yield limited information.   This is especially true if the person lives in a residence which is not visible from a public location or the person has an odd work schedule.

Before engaging an investigator to perform active surveillance, it’s important to ensure that the evidence sought will be relevant and admissible in court.   For example, because Indiana is a no-fault divorce state, the court will generally not care about adultery, especially if children are not involved or the children are not around the alleged boyfriend/girlfriend.  Thus spending money on an investigator to prove that a spouse is cheating will not usually be helpful in court.

Alternatives to An Investigator

Hiring an investigator may be cost prohibitive for many clients. However, searching social media profiles of a party or witness (including their close family members and friends) can be easily done

Additionally, Indiana has a statewide case system which allows anyone to research any criminal or civil cases involving a person or entity in the state.  The Indiana Secretary of State’s website also allows someone to research certain business, ownership, and other matters of those of persons with business interests in the State of Indiana.

There are also websites that will do a limited background check for a small fee.  These websites can provide additional information about a specific person.

Some of my clients have been creative in doing their own investigations.  One firm client wanted to establish that his ex-wife had a live-in boyfriend which was relevant to her alimony/maintenance claim.   He knew the boyfriend’s vehicle and lived nearby so he would take a picture of his vehicle every day when he was heading to work early in the morning and did that for over a month.  Sure enough, the vehicle was there every day when he went to work.

Picking an Investigator

As with any other profession, there are good investigators and bad investigators.   An attorney should know a few private investigators they considered to be trustworthy.  The client should have a clear understanding on who is responsible for the investigator’s fees.  The investigator should have a clear idea of the scope of work and/or number of hours for the project.

An investigator should be prepared to provide an itemized list of work performed at the completion of the project.   In a few cases, a client retained an investigator on their own who worked on a flat fee, but then had difficulty confirming whether the investigator was working on the project or the number of hours spent.

Ethical Issues with the Use of a Private Investigator

An attorney who retains an investigator should ensure that an investigator understands the limits of what they can and cannot do.   For example, an attorney may not directly communicate with a party who is represented by counsel.   An investigator retained by an attorney should make certain that the investigator they hired does not directly communicate with that person either.   The attorney could otherwise be held responsible for ethical lapses by the investigator.

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