The right to record another person has been a hot topic in recent years- most prominently in the right to record the police while they’re working. In addition, the introduction of two-party consent laws in some states regarding video or audio recording and the inconsistency with which such laws are enforced makes answering what seems like such a simple question extraordinarily confusing with the possibility of profound consequences (e.g. getting arrested, criminally charged and prosecuted) if you’re wrong. So…which is it? In regards to Child Protective Services (CPS), can you record them?
The answer is lies in a crucial element of privacy law: the reasonable expectation of privacy. While the right to privacy is not absolute, there is a right in circumstances that are reasonable as defined in law. As it applies to recording CPS the question is: under what circumstances do CPS employees have a reasonable expectation of privacy? In 2023, law enforcement officers sued hip hop artist Afroman for recording them while they executed a search warrant on his home and using the footage in future music videos. The fact that no criminal charges resulted from the recording said the quiet part out loud: government employees operating in their official capacity in your home have no reasonable expectation of privacy. The truth is it depends on the context and we’ll go through the various contexts where you might want to record CPS to answer this question.
In Your Home
Your home (whether you rent or own) is one of the areas most protected under privacy law. However, those protections apply to the residents or occupants- not to CPS. A CPS investigator operating in their official capacity in your home investigating allegations of child maltreatment has no reasonable expectation of privacy. The CPS investigator is a civil servant funded by taxpayer dollars in your home under likely coercive circumstances. Therefore, you are legally allowed to record CPS in your home or on your property- whether or not there is a two-party consent recording law in your state. If this weren’t the case, doorbells with cameras would be illegal in those states, too (fortunately, for these purposes, they are legal).
In the Hospital
If you are an inpatient in a private hospital room, the room serves a similar function to your home and therefore, you have the right to record CPS, as they have no reasonable expectation of privacy in your private hospital room. If you are in a public area or a semi-private room, your right to record will likely extend, but not under reasonable expectation to privacy; instead, you’ll be covered under the first amendment, as this would be considered a public place and function similarly to recording law enforcement in a public place.
In the Field at a Supervised Visit with your child(ren)
Many parents wish to record CPS if there is a dispute while on a visit with their child(ren) and CPS is supervising directly. If this is in a public area, you do have the right to record CPS in the context of a visit they are supervising if your child is in foster care or kinship care. Again, this applies under the first amendment and not under reasonable expectation of privacy.
At the Local CPS Office
At the local CPS office, CPS and its staff do have a reasonable expectation of privacy. Like law enforcement in their own precincts, you do not necessarily have the right to record CPS in their own office (even the common areas of the office). Even the first amendment does not get you the right to record here without the possibility of consequence. This also applies to visitation hosted at the local office. Recording your child is still allowed, but be careful that the recording doesn’t accidentally capture other CPS employees’ voices or likeness.
In Court
This will depend on the state and even the judge. Some states allow recording testimony in court, others don’t and even in states that do, there are cases and circumstances where recording devices may not be allowed in court. If you are in a court on a CPS case, the rules of the court apply and should be adhered to. Even if you technically have the right to record, angering the judge is not advisable if your child is in a placement other than your own. At CPSprotect Consulting Services, we recommend prioritizing reunifying with your child(ren) and if you want to pursue holding CPS accountable later, doing so once your case is closed. Trying to hold CPS and the courts accountable while they have custody of your child(ren) can make the reunification longer and more difficult at best and increasing the likelihood of your parental rights being terminated at worst.
While you have a right to record CPS in most circumstances, it’s not always advisable to do so. Remember that if you decide to record, CPS can decide to terminate a meeting prematurely or not include you in meetings with other parties. They may also be less forthcoming with information if you appear less cooperative. How much one should cooperate with CPS varies depending on the circumstances of the case, the stage, the allegations and the information CPS has access to. However, you should be aware of your right to record and when it applies, so you can execute it appropriately and put yourself in the best position to preserve your rights and protect your family.