Jonathan D. Gordon, Ph.D., J.D.

The Myth of Privacy and Confidentiality in Relationships:

Letting it all Hang out in Family Court

© Jonathan D. Gordon, Esq. 2014

There is a pervasive feeling that we lost our privacy, either due to Government, or from the ubiquitous surveillance cameras everywhere we go, or now-even at home.  The recent disclosure of Donald Sterling’s conversation with his girlfriend caused a great uproar and condemnation due to the racial content of his diatribe.  Regardless of the offensive nature of what he had to say, legal issues related to public disclosure from surreptitious tape recordings are also relevant.  The lessons we can learn from this and from other disclosures are many.

Is there a reasonable expectation of privacy at home?   Should we be able to say whatever we want in the sanctity of our homes with no concern?  Is there in fact, any sanctity in our homes?  In Family Court, where the intimate secrets of relationships are laid bare, there probably is no reasonable expectation of privacy.  This is because in Family Court, client credibility is continually being assessed.  Not only is credibility examined, but also basic morality, ethics and the ability to parent a child, among other things.  When a judge has to make determinations about who may be the better parent, what is in the best interests of the children, and whether or not to give the benefit of the doubt to one or another client, then almost any credible data can be useful.  Just because a person is in their home does not guarantee that what takes place there is immune from scrutiny.  This raises many questions and issues.

Perhaps there is such a thing as ethics, morality and values that follow us around, regardless of where we are.  What we whisper or how we act in the confines of our bedrooms or living rooms will be examined publically when the relationship falls apart.  The person who was once trusted with our secrets may one day bring those secrets to Court when it is advantageous to do so.  Regardless of whether or not this seems fair, it will happen when the bottom falls out of the relationship and the former confidante turns into the betrayer.  This is about what is between two people.  In another scenario, if child protective services gets involved in a family, the intrusion into privacy is even worse.  State workers go into homes, look in bedrooms, closets, refrigerators, bathrooms and interview everyone who might have information about the family. Neighbors, schools, pediatricians and friends are interviewed.  Nothing is immune from scruitiny.  But absent a referral to the authorities for alleged domestic violence, child abuse or neglect, what can we reasonably expect from our partner as far as privacy and confidentiality is concerned?  Is there any protection from this kind of exposure?

When you look at it from another perspective, it is not so hard to understand.  Why should our partner, in a Family Court proceeding, be expected to keep the confidentiality usually afforded to a therapist or to the clergy?  Perhaps in a relationship and in parenting, there should be a higher expectation of morality, ethics and good behavior, rather than the expectation that anything goes.  A person who tape records our conversation in our own home is already not in that relationship. That person is somewhere else emotionally.  Most people would know that.  Why would a person, knowing that there is a serious problem in their relationship, expect their partner or spouse to continue to protect them and to tolerate the very same bad behavior that led to the demise of that relationship?  The reality is that once the distance between two people is obvious, once the awkwardness or tension is palpable, the new expectation should be that the rules already changed.  The best thing that both parties can do is recognize there is a problem, discuss it and then seek help to ameliorate that problem.  But if two people have different motivations, agendas, and perceptions of the same reality, then really—all bets are off.  The initial premise of that relationship is long gone.  Loyalty falls away with the demise of the relationship. 

So what is the message?  That you can safely say or do whatever you want so long as you perceive the relationship to be solid?  Probably not.  There is such a thing as offensive behavior and speech from which inferences may be drawn by others.   Behavior that is considered to be ethical, moral and good can be debated but is generally accepted by most reasonable people to be within certain parameters.  What is acceptable in one generation is perhaps no longer acceptable in a subsequent generation—or vice versa, as in sexual mores that were previously more strictly construed than today.  We are well aware of what is generally acceptable today and what is not--unless the person just crawled out from under the rock where he or she was living for the past 40 or 50 years. 

To assume that we are protected at home from any examination of our behavior is really naïve.  Actually, when two parents become adversarial, the converse is true.  Everything gets put under the Family Court microscope.  Sometimes what is brought to court for examination is petty and ridiculous and the complainer looks bad for bringing it.  Sometimes, however, what is presented to a judge shows the other parent’s lack of trustworthiness, morality, values, judgment or veracity.  The judge will take that information, if verified, and make certain assumptions about that parent’s character, among other things. It can sway the court against a parent and help determine a custody or parenting time determination.  What you say, how truthful you are, and how you act matters.  It always mattered.  But when two parents are in court fighting over a child, it matters more than ever.  "How you act" encompasses a lot of behavior, including but not limited to being manipulative, lying, cheating on taxes, stealing, hiding money, lying to the Judge, domestic or other violence, child abuse and neglect.  It also includes being perceived as a nasty, hateful person.  The Judge will make that assessment.  If you are never in front of a Judge, you will still be judged in this world by the people around you, your children, your bosses, and everyone with whom you come in contact.  If a person is a nasty hateful and manipulative person, it will be obvious to others and one's life will be characterized in those terms.  The worst scenario is when your children perceive you that way.  It happens. 

The best approach is for people to be the best people they can be, wherever they are, and regardless of who they live with.  Being well behaved, civil and respectful to others is learned early in life.  Those are always important values, among others. Maybe the answer is for us to self-monitor and to examine our own behaviors and attitudes on an ongoing basis, to ensure that we are above criticism.  To be sure, an adversarial partner or spouse will criticize and will watch for opportunities to pounce on our mistakes.  But good will, reasonableness and kindness hopefully matter in the long run.  Hopefully that wins the day.

Things come back to bite a person.  Bad karma, and bad behavior is like a boomerang.  While warped values, baseless hatred of others, and immorality are heralded in the press, the bizarre scenarios that we read about in the papers are often re-created in Family Court, rather than in the NBA.  A judge, trying to figure out what is in the best interests of a child, may indeed be very interested in a tape recording, if it was legally obtained.  The answer is not to sweep your house for bugs, but to self-sweep for bad behavior, warped values and attitudes that are corrosive to society, destructive to a relationship and which are antithetical to good parenting.  That way, you have nothing to hide. If a tape recording is ever produced, it will only reveal that you are a good person, a good parent and a good citizen.

Good luck, and please post a comment about your experiences.

Copyright © 2014 by  Jonathan D. Gordon, Ph.D., J.D.

Please note, this blog is for information purposes only and should not be relied upon or taken to be legal or psychological advice nor does it create an attorney/client or psychologist/patient relationship. If you have a question about a specific matter you should seek out an attorney or mental health expert to assist you.

Web Site:  www.jdgordonlaw.com

Tweet Me:  @jdgordonlaw

"Like": JDGordonLaw on FaceBook.