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.

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-Joseph Nichols
-Paul Nichols


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