Wednesday, June 21, 2017

Older Drivers

The July 2017 Consumer Reports is worth reading.  An article by Michael Tortorello, entitled, "Driving Safer, Driving Longer" points out that more drivers over the age of 65 and even 85 are on the road than ever before.

He goes on to point out:  "Americans love to drive.  More than 75% of adults carry a driver's license including 40 million who are 65 or older. But driving is more than a passion or a pastime:  It's a lifeline.  Studies show that giving up driving increases a person's mortality risk and makes seniors more likely to land in nursing homes and suffer from depression.  Yet the average American man outlives his ability to drive by six years and the average American woman by 10 years."

There is a "senior transportation crisis" that is growing more and more urgent with time.  Presently, America has 45 million seniors 65 and older.  By 2030 there will be a projected 74 million seniors.  The problem for seniors is that other than having there own automobile, there is no way for them to get around.  This is especially frustrating for people without cars in the northern tier of New York.  It is very difficult for seniors, (and others without transportation of their own), to go from Gouverneur to Canton, or Potsdam, Malone, Tupper Lake, Saranac Lake, Chateaugay, Ellenburg, Plattsburgh, and all the points in between.  There is some public transportation that is very useful, but for people wanting to get from point A to point B when they want to go, most will find the public transportation inconvenient or restrictive.

Wednesday, June 14, 2017

AAA Memberships Are A Must

The Auto Club.  It is also known as the Automobile Association of America.  It is a great organization and I have been a member since I learned to drive.

In the area of Franklin County and Clinton County and Essex County you can (and should) join the AAA Northway.  If you are not a member I strongly urge you to become a member as soon as you can.  If you live in St. Lawrence County I'm sure that you can join the AAA Northway, although Watertown has an AAA office that I think is associated with AAA of Central New York.

The AAA is at the forefront of road safety.  The publication that I receive bi-monthly is "AAA NOW!"  Each issue really does a great job of providing useful, practical information for vacationers and every day drivers.  I highly recommend it.

Now, this post, so you know, is not being suggested by or paid by the AAA.  It is just that we think that they provide such an excellent service AND provides a voice for people in both the Albany legislature and the United States government, that promotes safety for drivers that it is worth your while to become a part of it.

Here is an example:  Since 2008, each year, the AAA Foundation provides to the public a document that is called the "Traffic Safety Culture Index".  This is a great tool to understand the behaviors of people as it relates to Traffic safety.  You can view it at


The most recent "Traffic Safety Culture Index" published by the AAA found that 88% of all drivers between the ages of 19 and 24 engaged in texting, speeding or running red lights within a thirty day stretch!

But they are not alone.  Far from it!  For those drivers that range in ages from 25 through 39 the rate was 79.2%; ages 40 to 59 75.2%.  The lowest percentage, (not so low, in the high 60% range), were drivers over 60 and new drivers who range in ages 16-18.

What surprised Dr. David Yang, the executive director of the AAA Foundation for Traffic Safety was that some of the young drivers in the range of 19 to 24 believe that their dangerous driving behavior is acceptable.

Moreover, drivers ages 19-24 were 1.6 times as likely to report having read a text message or email while driving and nearly twice as likely to admit that they keyed or sent a text or email.

Half of drivers age 19-24 said they drive through a light that had just turned red.  36% of all other age groups admit to the same behavior.

Dr. Yang's advice:  "It's critical that these drivers understand the potentially deadly consequences of engaging in these types of behavior and that they change their behavior in order to keep all drivers safer on the roads."

I thank Dr. Yang of the AAA Foundation for Traffic Safety and the AAA Northway for all the hard work that they do to make the roads safer.

Remember, if you or your family or friends have been hurt by a careless driver, please keep Poissant, Nichols, Grue, Vanier and Babbie in mind.  We have offices in Potsdam, New York and Malone, New York, and can meet you at your home or some other convenient location in case it is difficult for you to travel.  We are always traveling to Plattsburgh, NY,, Saranac Lake, New York, Tupper Lake and all points in between.

-- Joe Nichols

Friday, August 19, 2016

Are Medical Care Professionals Responsible For Injuries That Their Patients Cause?

     When you get your wisdom teeth pulled, undergo surgery, or get your eyes dilated by an ophthalmologist, you should be driven home by someone you trust. After undergoing such procedures, your driving will be impaired and getting behind the wheel will put yourself and others in danger. Your doctor must warn you of the side effects of medication, especially if it will have an effect on your driving. If they fail to do so and you are involved in an accident, they may be liable to provide compensation. The people you injure with your car may also want to hold the doctor accountable for their lack of action. However, whether they are able to do so is highly disputed in the court system.

     To help explain the concept, here’s an example: Mike decides to take a trip to the gas station; maybe he needs gas, or maybe he’s feeling lucky and decides to buy a lotto ticket. Because he lives in Malone, there are more than enough gas stations to choose from, but he decides to go to Stewart’s and makes his purchase. While he’s walking out of the store, a car hurtles across the parking lot and strikes him. The car is driven by an elderly man who is recovering from an eye dilation. The elderly man’s doctor did not tell him how long the dilation was meant to last. Mike survives the accident but suffers serious injuries from it. Should the eye doctor be liable for Mike’s injury?

     This example is actually very similar to an actual event in the case, Purdy v. The Public Administration of Westchester County. A good summary of the case and its significance is outlined by Thomas A. Moore Matthew Gaier in a recent article they wrote for the New York Law Journal. In that case, a man was struck by a vehicle driven by a 75-year old woman who blacked out behind the wheel. The woman lived at a nursing home and experienced frequent blackouts. The injured man, Purdy, took legal action against the nursing home for allowing the woman to drive.

     Now, the only difference between the example involving ‘Mike’, above and the actual court case was that the fictitious Mike in the example was that he was hit by someone who was given eye drops by his doctor. Eye drops are a form of medication. By contrast, the woman in Purdy v. The Public Administration of Westchester County was not given any medication by the nursing home where she lived. That single difference may seem small, but it has a significant impact in the eyes of the court.

     In the court case discussed above, the elderly woman was under the care of medical professionals because she lived in a nursing home. This means that the nursing home owed a duty to elderly woman through an established relationship. Purdy was a third party to that relationship. The question proposed by the Court was wheher the medical professionals at the nursing home owed a duty to Purdy even though he had no direct relationship with them. The Court also questioned whether the nursing home had control over the woman’s ability to drive.

     The Court found that the nursing home did not owe a …..duty of care to the public and did not have significant authority over the woman’s ability to operate a vehicle. It was also found that the medical care professionals did not owe a duty to warn the woman of the dangers involved in driving for the benefit of the public. These decisions were made largely because the medical care professionals did not administer any medication to the woman. Because she was not given medication, there were no side effects of which she could be warned. In the process of resolving this court case, it was made clear that doctors and other medical personnel may be held accountable by injured third parties if the use of medication is involved.

     Purdy’s case occurred in 1988 and since that time, other cases have surfaced that have clarified the Court’s position on this issue a little more. In Davis v. South Nassau Community Hospital, the Court made the following statement. “Where a medical provider has administered to a patient medication that impairs or could impair the patient’s ability to safely operate an automobile, the medical provider has a duty to third parties to warn patient of that danger.” This means that if a doctor gives their patient medication that could have side-effects that would cause the patient to drive in a dangerous fashion, the doctor is to clearly indicate those side effects to the patient and explain that it can affect their driving.

     The side effects of a medication that can effect one’s driving include; sedation, weakness, dizziness, unsteadiness, and disorientation. Patients who feel any of these symptoms should not get behind the wheel as it will put them at risk as well as others.

     In addition, the Court has also considered third party relationships in a different light. In Davis v. South Nassau Community Hospital, the Court concluded that it must be considered in each case as to whether the medical provider is in the best position to prevent harm given their relationship to the patient and third party. If the medical provider is in the best position to prevent harm by warning a medicated patient about the dangers of driving, they may be held liable if a third party becomes injured. This is because the medical professional was the one who made the decision to administer the medication to the patient.

     Vehicles are powerful machines that can cause horrible damage to people and property when they are not operated correctly. If you or a loved one has been involved in a car accident with an individual taking medication, you may be able to receive compensation for your injuries. If you have any questions about third party relationships in automobile accidents, contact Poissant, Nichols, Grue, and Vanier at:

367 West Main Street                                                                        45 Market Street
Malone, New York 12953                                                                 Potsdam, New York 13676

Phone: (518) 483-1440
Toll Free: 1-800-924-3529

-Paul Nichols

Wednesday, August 3, 2016

Driverless Cars Still Need Drivers

     In 2011, Google began to seriously test what they later referred to as a ‘driverless car’. The goal of this testing is to one day develop a vehicle which does not require a driver to operate it. Navigation, speed, and steering would all be handled by an artificial intelligence designed to transport passengers safely from one area to another. Five years later, other companies such as Ford and Tesla now share Google’s aspirations and are working on driverless car technology in their own vehicles. Once this technology is fully developed and available on the market, individuals such as the elderly and disabled will experience a new level of independence that they previously did not have. When it was first announced, it was a common belief that driverless cars would not be seen on the road for many, many years. Now in 2016, Tesla has been the first company to release a vehicle with basic driverless car technology on the market. There is no doubt that further advancements will be made as companies rush to compete with Tesla’s vehicles. As the concept of what it means to be a ‘driver’ changes over time, Courts across the country will face new and interesting questions as to who can really be held accountable for car accidents. There have already been two car accident cases involving driverless car technology. These events have led the Court to debate over who is and who is not at fault for such accidents.

     The driverless car option first appeared in Tesla’s Model S vehicles. These features included automatic braking and steering. It is also possible for the vehicle to detect its surroundings and make adjustments accordingly. Collectively, these features work together in a function called ‘Autopilot’. Upon the release of the Model S, Tesla stressed the fact that the Autopilot technology was still in its ‘beta’ stage of development, meaning that research and development of the product is ongoing. When applied to software, ‘beta’ is largely associated with early product releases that forecast a greater technology to come. It also marks the transition of a program from its ‘creation’ phase to its ‘usable’ phase. This means that there are likely to be software bugs and glitches that surface as the program is being used. Tesla’s statement should be taken as a warning by drivers to use the Autopilot with discretion and not to rely upon it completely. Many legal professionals believe that the title ‘Autopilot’ has led some drivers to put more faith than they should in the driverless car feature. So far, Tesla has refused to change the name despite two accidents that occurred in Model S cars.

     In the first accident, a man was using the Autopilot feature in his vehicle when he was struck and killed by a tractor trailer that passed in front of the car. Tesla has since been questions about the reliability of the software and why it did not detect the tractor trailer as it crossed in front of the car’s path. The car was traveling at approximately 65 miles/hour when it collided with the tractor trailer. It is unsure as to whether speed affects the software’s ability to detect oncoming objects, however, it was a sudden collision.

     In the second case, the Autopilot program failed to traverse a winding road when activated. Instead, the car was driven off the road completely before it crashed. Fortunately, the accident was not fatal. In this case, Tesla stated that the driver was at fault for the accident because he ignored the Autopilot’s safety features.

     The Model S cars are equipped with pressure sensors in the car’s driver’s seat and steering wheel. When Autopilot is activated, the driver then has to periodically place his or her hands on the wheel or they will receive an audio warning from the car. This security measure is meant to keep a driver awake and alert even though they are not steering the vehicle. If the driver fails comply with the warning, the car will then slow down until the wheel is gripped. According to Tesla, the man in the second case failed to follow the car’s warnings and place his hands on the steering wheel.

     While these security measures certainly improve the vehicle’s safety, there is still much room for improvement. Irresponsible and dangerous drivers have found ways of tricking the security system in an attempt to lounge in the back seat of their vehicle while the program navigates it. By placing weighted objects in the correct spots in the front seat, a driver can fool the car into thinking that someone is at the wheel. This is very dangerous, irresponsible, and illegal for someone to do as it endangers both the driver and anyone involved in an accident that their actions may cause.

     Another hiccup in the Autopilot program involves its vehicle detection system. This feature allows the car to recognize other vehicles that travel in its proximity. While this is essential for the car’s navigation, some glitches have been found in the software. When a vehicle is detected, the Autopilot program will attempt to match it with a make and model of car which will allow it to estimate the dimensions of the car for navigation purposes. However, there have been occasions where the software has failed to match the car with a recognized make and model or incorrectly matches the identified vehicle with the wrong brand or model. While this has yet to cause an accident, it is concerning because the Autopilot’s steering is determined by the environment around it, including other cars. In particular, the Autopilot’s ‘Merging’ feature may be affected by this glitch.

     If the software can be tricked and the person sitting in the front seat isn’t actually driving the car, who can be held accountable if a car accident happens? The law is that the owner of a vehicle is responsible for any damage caused by that vehicle whether or not they are the driver. For more information about the ownership and liability of drivers, please read our article, Who Should Be Driving Your Vehicle. Even so, drivers have a duty to be alert and do everything within their power to avoid car accidents. For more information on that, refer to our article, Use Your Right-of-Way The Right Way. Drivers must use discretion when using the technology in their vehicles and judge the effectiveness of the technology based on the situation.

     While the Autopilot feature is innovative, it should not be used to navigate complicated or roads that have many curves and different contours. It is best used on highways or long stretches of roadway. Using the feature in these areas will allow a driver to rest and be prepare for more complicated navigation ahead.

     Even though the Autopilot program is capable of steering the vehicle, whoever sits behind the steering wheel at that time is still considered a driver, even when doing something stupid like climbing into the back seat to trip the so called, ‘Autopilot’ system. The Autopilot does not activate on its own. A driver must flip a switch by the steering wheel in order to turn it on. This means that a driver must make the conscious decision to use the technology available to him or her. Therefore, their actions will still be considered by the Court. Tesla released an additional statement which stated that drivers to have a responsibility to keep their hands on the wheel. Although they may be allowed to relax when Autopilot is active, he or she still has the same driving responsibilities as when the feature is turned off.

     In this way, the consideration of a driver’s roll in a driverless car has not changed in in a legal sense. The owner-driver relationship in terms of liability still applies to this situation. Yet, a third party such as the manufacturer or designer of the vehicle may be held accountable for such a car accident if a claim in product liability can be established. A product liability lawsuit is established when someone becomes injured by a product, like a motor vehicle, due to an error made by a manufacturer or designer of the product. This error could be related to unsafe product design, ignored federal or state regulations, a defective product, or the inability of the product to do that for which it was designed to do.      

     This technology is new and exciting, but it must be used with care. Drivers should not push and break the boundaries of safety just because they believe it is possible to do so. When you own a vehicle or drive a vehicle, your actions can result serious consequences. Think of Autopilot as an aid rather than the entity its name suggests. Despite what you may believe, this technology is nowhere near capable of replacing a driver.

     As a side note, I would like to share my opinion on certain ‘reward’ systems that insurance companies offer drivers for good driving. These rewards come in the form of reduced payments and sometimes gift cards. A person should not be rewarded for doing something as simple as looking out for being a careful driver. Maintaining your own safety and the safety of others should always be a concern of drivers whether they have a monetary incentive to do so or not. Acting to save your life and the lives of others is a legal duty when you are behind the wheel and the fact that some people need an extra push to do so is disconcerting. Be a good driver whether you are or are not operating a driverless car.

     If you have questions about the liability involved in owning and operating a car or other motor vehicle, contact Poissant, Nichols, Grue, and Vanier at:

367 West Main Street                                                                        45 Market Street
Malone, New York 12953                                                                 Potsdam, New York 13676

Phone: (518) 483-1440
Toll Free: 1-800-924-3529

-Joseph Nichols
-Paul Nichols

Monday, August 1, 2016

Facebook Posts as Evidence:

     Only a few years ago, the Court would not have viewed Facebook posts as a reliable source of evidence. The reasoning behind this was that a person could create a website resembling Facebook and post false information to it that would alter the outcome of a case. Over the years, we have become more aware of Facebook’s security measures as they have developed. We have also cyber-based forensic methods that have seemingly improved over time. Now in 2016, Facebook posts are seen as valuable sources of information for attorneys and can be used as evidence in a case.

     Take a moment to count the number of times you have accessed Facebook today. How many posts did you make? How many posts did you read? How personal were they? Some people feel very comfortable posting personal information about themselves because of privacy controls used on the Facebook website. While these security measures may keep some unwanted viewers away from this information, it can still be used in a legal case. An attorney does not have to contact a Facebook representative in order to access this information. Evidence taken from Facebook is just that, evidence.

     The same steps that are taken to present any evidence in a case are applied to Facebook posts as well without many adjustments. An article written by Michael J. Hutter in the New York law Journal explores the steps that must be taken to have Facebook admitted into evidence in a case. Mr. Hutter, a law professor at Albany Law School, emphasizes that the Facebook evidence must be relevant and must be authentic.

     First, it must be shown to the court that the Facebook posts are relevant to the case. For example, if you claim you were injured in an automobile accident such that you can no longer engage in activities, but your Facebook posts shows you skydiving and riding mountain bikes, the insurance company will consider such evidence relevant in that it disputes your claim of injuries.

     In order to become evidence, the information has to be authenticated. In other words, it must be proven that the Facebook profile owner made the post.

     The use of Facebook as evidence has grown over the past years. Whether the post or messages are made ‘private’ or not, they may still appear in a court room.

     We urge our clients to be very careful in what they post on Facebook, particularly if they are anticipating litigation.

     For example, if you know that you’re going to be in a custody dispute involving your children with your ex-spouse or a custody of litigation involving the other parent, it is absolutely counterproductive to your case to have posted pictures on Facebook or other social media showing you knocking back alcoholic beverages. Perhaps even more devastating are the insults that separated parents post on Facebook when they are directed at the other parent. Every judge that we have appeared before in custody matters involving children have no patience for parents who send negative comments or insults to the other parent via Facebook or other social media.

     Be mindful of what you post on Facebook or other social media sites. Consider how that information that you’re sharing on Facebook will affect you in the future. Certainly, never threaten or harass other individuals online. Even if you delete the post or messages that are offensive, they will be saved by another person and deleting posts or messages does not mean that they have been eliminated as they can always be reconstructed. This includes pictures and video posts.

     For more information about the use of Facebook-based evidence in a court proceeding, contact Poissant, Nichols, Grue, and Vanier at:  

367 West Main Street                                                                        45 Market Street
Malone, New York 12953                                                                 Potsdam, New York 13676

Phone: (518) 483-1440
Toll Free: 1-800-924-3529

-Joseph Nichols

-Paul Nichols

Thursday, July 28, 2016

Your Rights in Assisted Living and in a Nursing Home:

     Helping an elderly relative move into an assisted living residence can be an emotional and worrisome time for everyone involved. When you or someone you know makes the decision to live in an assisted living facility, you trust that facility to perform certain duties to keep you healthy and safe. Because the elderly are expected to live longer and longer lives as medicine progresses, one can expect to live in an assisted living residence for a number of years. As one reaches the age of retirement and beyond, their body grows more delicate and susceptible to infection and disease. In addition, injuries resulting from falls can be devastating and may affect the injured person for the rest of his or her life. Depending on the situation, one might be able to gain compensation for injuries due to medical malpractice or negligence by the assisted living facility.

     First, it is important to make a clear distinction between an assisted care facility and a nursing home. An assisted care facility is one that provides housing, food, transportation, and in-house monitoring to its residents. Assisted living facilities also develop individual plans for each of their residents which are bound to change over time. On the other hand, nursing homes provide skilled medical care to those who needs it such as the disabled or ill. Nursing homes also provide housing and health services. Like assisted care facilities, nursing homes also develop individual care plans for their residence; however, these plans are largely medically based. The difference between these two entities can be determined by the level of medical care they provide. In the case of nursing homes, the failure to meet the needs of a resident may result in liability under medical malpractice, negligence, and/or New York Public Health Law § 2801 - d.

     New York Public Health Law § 2801 - d states that, “If the residential health care facility such, as a nursing home, deprives a patient of any right or benefit he or she may have under the law, then the institution is liable for any injuries that the patient suffers because of the deprovation of any right or benefit.” This is includes any benefits that are put in place for the wellbeing of the patient. This also includes state regulations and requirements of health care facilities. If a health care facility is found to be liable for patient’s injury, that patient should receive compensation to cover the damages suffered.  This payment will be no less than 25% of the patient’s payments to the health care facility. At this point and time, this law is most often applied to nursing homes.

    Injures do occur at  long-term residential facility. Some of the most common injuries include those incurred from falls and bed sores. The risk of infection causes bed sores to be particularly dangerous to patients. There is a Quality of Health law that addresses bed sores and how facilities should prevent and treat them. It states that when a patient without bed sores is admitted into a facility, they are not to develop bed sores unless it was unavoidable. If a bed sore does develop, it is a facility’s duty to provide treatment to the patient for the purpose of healing it. Other claims can be made based on emotional harm, financial loss, or death.

     When disputing a claim, a nursing home or long-term care facility must establish that they took every reasonable measure to prevent the injury from happening. Before admitting a loved one into a nursing home or long-term care facility, always inspect the environment in which they will be living. Note the quality and care that residents receive at the facility. In the resident’s room, take note of any loose rugs or objects that stick out at odd angles. Make sure public areas and bathrooms of the facility are well lit to minimize the chance of your loved one tripping and suffering a serious fall. If you find a potential injury hazard, you have to choices; either search for another residential facility or nursing home, or notify the facility’s management of the situation immediately.  

     A nursing home or long-term residence facility may also be held liable if they do not properly adhere to the resident’s plan of care. If the needs of a resident are ignored, a facility may be charged with neglect. Errors in providing medication, or providing the wrong medication to a patient can result in a liability claim. Before admitting a relative to a long-term residential facility, it is important to recognize that he or she has the right to take legal action against the facility of they are injured as a result of negligence, malpractice, or neglect. A facility can to punish or otherwise discriminate against a resident for exercising their right to take legal action. In some cases, a resident may not be able to act on his or her own behalf due to mental or physical incapacitation. When this happens, a legally appointed individual will act on the resident’s behalf.  This individual should be someone who the resident trusts and who is trustworthy, usually a close family member. 

     Currently, it is debated as to whether claims of malpractice or negligence are appropriate when applied to nursing homes. Claims will vary from case to case, but standard rule is that malpractice claims address the actions of medical care professionals or medical procedures. For example, incorrect medication distribution would most likely fall under a medical malpractice claim. On the other hand, if a patient trips on something that could or should have been moved out of their path, a liability claim would most likely fall under negligence.

     When defending a negligence claim, one must prove that the facility owed a duty to the resident and failed to fulfill it. Medical malpractice claims are slightly more difficult to apply to long-term care facilities because an attorney must consult and obtain documentation from a medical expert or an appropriate physician clearly indicating why the facility is at fault.

     If you are seriously considering admitting a loved one into a long-term care facility or a nursing home, remember that the wellbeing and health of that loved one depends on the quality of care they receive at the new residence. It is not a decision to be made lightly and involves a great amount of trust on the resident’s behalf. If you or a loved one have suffered an injury at a nursing home or long-term care facility, you may be able to receive compensation for these damages. For more information, contact Poissant, Nichols, Grue, and Vanier at:

367 West Main Street                                                                        45 Market Street
Malone, New York 12953                                                                 Potsdam, New York 13676

Phone: (518) 483-1440
Toll Free: 1-800-924-3529

-Joseph Nichols
-Paul Nichols

Monday, July 25, 2016

Custody: to Record or Not to Record Your Child:

     It is natural for parents to protect their children, or try to. In divorce cases, battles over the custody of a child can be become emotional warzones with each parent trying to disprove the others ability to take care their offspring. The ability of a parent to take care of a child may depend on their living, financial, and mental health situation. To try and prove one parent’s issues in these areas, the other will gather information in the hopes of winning the custody battle. They may try doing this by taking pictures, snooping through phone messages, or taking a video or audio recording of their former spouse when the child is present. This is a very dangerous thing to do and can lead to charges of eavesdropping as no consent was given before the recording took place. This can create more trouble for the parent recording rather than the one being recorded as evidence obtained through eavesdropping cannot be used in court.  Earlier this year, a court ruling made it possible for parents to record one another with their child and without the other’s consent if and only if they believe their child to be in danger.

     Most importantly, judges frown on recording a child’s conversation with the other parent - or recording a child at all. I have not yet met the judge who is not wary of such recordings. The opportunity for staging a conversation is too tempting for many parents to resist. Moreover, judges become dismayed when children are manipulated in a dispute that should be left for adults.
     The Court of Appeals, New York State’s highest court, decided in April of 2016 that a parent may have a valid basis to record a child’s conversation with another parent without giving notice to either the child or the parent that there is a recording being made. That case; People v. Badalamenti, imposed limits on circumstances where these unauthorized recordings can be used as evidence. 
     The ruling states: “…if a parent has a good faith, objectively reasonable basis to believe that it is necessary, in order to serve the best interests of his or her child, to create an audio or video recording of a conversation to which the child is a party, the parent or guardian may vicariously consent on behalf on the child to the recording…”
     This means that a recording can only be taken if:
·        The child is a minor
·        The child is in the recording along with the other parent
·        The parent has a reasonable belief that a recording should be taken
·        The child’s wellbeing and safety are at risk
·        The recording serves the child’s best interests
If the child is a minor, it can be argued that a parent can give consent for them when taking an audio or video recording. Only one party needs to give consent in this situation meaning the other parent being recorded does not have to give consent. The parent who is doing the documentation must also be able to present a clear and reasonable argument as to why they believed a recording was necessary. Simply not liking other parent, worrying about hteir child, or acting out of anger or spite does not qualify as an objective reason. The reason should be backed with facts about the other parent to support the decision to record. If a child is in true danger of physical or mental abuse, that also justifies a recording. Again, a hunch is not a valid reason for recording parent/child interactions without consent.
     If the recording parent fails to meet these requirements, the following rule applies: “If it is not objectively reasonable to believe that a recording is necessary to serve the child’s best interests, then the recording may constitute the crime of eavesdropping…”
     In other words, before hitting that little red ‘Record’ button; a parent must be very careful and very sure that they are justified in doing so. If the Court determines that the recording was not made with good reason, it will not only be dismissed from any consideration by a jury, but also the parent who took the recording may be charged with eavesdropping. Before making such a recording, consult with an attorney and discuss this and other legal ways of obtaining evidence. Parents who are not careful can cause more harm than good in document their child’s interactions with the other parent. Consider the logical reasons and consequences that have an impact on the recording before making one. 

     If you believe your child to be in real and immediate danger, call the police. Your call will be documented and reports from other sources such as police officers may help your case. If you contact the police, there is less likely to be trouble or debates when including that call as evidence. 
     Timothy M. Tippins, a family law teacher at Albany Law School and an authoritative voice on matters involving custody in all aspects of family law, expressed his own discomfort with this recent ruling in regard to the eavesdropping policy. According to him, allowing parents to record interactions between their child and another parent may cause ‘scheming’ within families. Even though there are legal safeguards in place that state parents must have ‘good faith’ and are acting in the best interest of their child, the temptation to record or spy on another parent may encourage dishonesty in an already tense situation.
     During custody battles, parents may view one another as bad or evil due to other issues involved in the divorce. Such feeling may encourage these individuals to make recordings even when there is no founded reason to do so. Parents who are constantly looking over the other’s shoulder in the hopes of capturing pieces of their life to use in court add to the already stressful home environment in which the child must live.

     If you or someone you know is a concerned parent involved in a custody battle, remember that recording your former partner involves risk and can end up working against you in court. To better understand vicarious consent for a child, contact Poissant, Nichols, Grue, and Vanier for more information.

367 West Main Street                                                                        45 Market Street
Malone, New York 12953                                                                 Potsdam, New York 13676

Phone: (518) 483-1440
Toll Free: 1-800-924-3529

-Joseph Nichols
-Paul Nichols