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
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