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Apr 06 2016

NY Court: Minor Child’s Parent Can Secretly Record Other Parent

NOTE: I was the trial attorney for this case People v. Badalamenti that I am discussing today. Everything I write about below comes only from the published opinion.

The NY Court of Appeals, in a 4-3 split decision issued yesterday, ruled that a parent can secretly record a conversation between a minor child and anyone else – including the other parent as long as the recording parent has a good faith belief that to do so would be “in the best interest of the child.” This ruling could have large implications especially in the field of matrimonial law.

A quick summary of the case: The defendant was charged with using a belt to beat the 5 year old son of his live-in girlfriend. The defendant testified that it was the child’s mother and not him that beat the child. A key piece of evidence was a cell phone recording made by the child’s father during a call to the house. He had called several times without reaching her; the calls went directly to voicemail. Finally, a call went through, but no one said anything to the father. However, the line was mistakenly left open, and the father was able to hear what was occurring in the defendant’s apartment. Defendant and the child’s mother were yelling at the child, who was crying. Defendant could be heard threatening to beat the child and punch him in the face. The father, using another cellphone, tried to call the landline telephone in the apartment, but no one answered that line. The landline phone could be heard ringing during the taped incident.

At this point, the father decided to record what he was hearing using a voice memo function on his cellphone. On the recording, which was played to the jury at defendant’s trial, the defendant told the five-year-old boy that he was going to hit him 14 times for lying and that this would hurt more than a previous beating. The father saved the recording on his cellphone. He did not however contact the police.

Blind but not deaf

Blind but not deaf

At trial, when the prosecution decided to introduce the tape, I objected like a madman on several grounds, most notably that the recording violated NY’s prohibition on wire-tapping and eavesdropping which requires at least one party’s consent before a conversation can be recorded. I also argued that the evidence was being used to prove “propensity” – that is, if the defendant beat the child before, he likely beat the child this time. The Court’s decision did not address the second argument or any of the others I made regarding lack of timely exchange etc, and focused only on the wiretapping argument.

NY Penal Law 250.05 prohibits eavesdropping and makes it a crime to secretly record a conversation without at least one party’s consent. NY’s Civil Practice Law & Rules section 4506 (also applicable to criminal cases) makes eavesdropped conversations inadmissible at trial. The trial court allowed the recording to be admitted into evidence, holding that the father’s action was not eavesdropping, and that, even if it were, it was justifiable on the basis of the “duty of the father to take some action once he heard [defendant’s] conduct.” The Appellate Division held up the trial court’s ruling on the grounds that the father had “consented on behalf of the minor child.” That court relied upon a Federal decision out of the Sixth Circuit (covering Michigan, Ohio, Tennessee and Kentucky) called Pollack v. Pollack where a parent secretly recorded a conversation between the recorder’s 14 year old child and a step-parent. Pollack was followed in one NY case, relied upon here, called People v. Clark. In that case, the mother of an eight-year-old boy with autism, who had noticed that her son was coming home from school with bruises, placed a recording device in her son’s backpack, and recorded evidence of a “conversation” at which the boy was present, that established the guilt of his personal bus matron.

The Court of Appeals upheld this analysis and it now becomes the law of the State. In deciding that a parent need only show that they are recording the conversation “based on a good faith reasonable belief” that to do so would be in the best interest of the child’s welfare, the Court paid lip service to the notion that the case would lead to abuse by parents. It did list four public policy factors that might be counter to the ruling:

(1) It is subject to misuse and abuse by scheming parents; (2)It allows for an invasion of the child’s privacy; (3) it fails to recognize the child’s right to make his or her own choices; and (4)It will result in inter-family discord and resentment when a child finds out that his or her parents have been secretly recording private telephone conversations.

But it essentially said all those were outweighed by an analysis of the best interest of the child and the reasonableness of the parent’s good faith belief it was necessary to record the conversation in the child’s best interest. It again recognized the strong public policy against eavesdropping but said trial court’s in conducting hearings prior to letting in the taped conversations could address all those concerns.

The dissent disagreed. It cited the plain language of the statute which prohibits exactly the conduct that occurred – that is, taping a conversation without one party’s express consent. The majority’s decision basically amended the statute to add a “vicarious consent exemption.” The dissenters pointed out that People v. Clark ruling went against many other NY appellate rulings that held the best interests of the child do not support allowing eavesdropping. They said it was a job for the Legislature and not the court to decide if they wanted to draft this amendment to the statute. The dissent focused and highlighted the potential for abuse:

For example, parents in the midst of bitter custody disputes will now be less deterred from eavesdropping on and recording their children’s conversations with the other parent, incentivized by the possibility of obtaining admissible evidence prejudicial to the other parent. The ability to obtain evidence in this manner — evidence which, aside from two recent appellate decisions, has heretofore been deemed inadmissible in New York court proceedings — will undoubtedly lead to increased familial tension, escalation of hostility in divorce and custody proceedings, and will result in mini-trials regarding whether the evidence is admissible, thereby further prolonging such disputes, all to the detriment of the children, themselves

To highlight the vagueness of the standard applied by the majority, the dissent focused on the testimony of the father I elicited during cross-examination where he admitted that while listening to the conversation he was not concerned for the child’s physical safety: “The tone was getting louder and louder as I listened, but as far as physically, no, I didn’t think he was being harmed like that.” This, coupled with the father’s not reporting the taped incident to any authorities until well after the arrest of the defendant many months later proves that the majority’s decision “may ultimately turn out to be an ineffectual one because courts will likely be loathe to reject evidence relevant to the welfare of a child, now that it may be admissible, even if procured in bad faith” and without a good faith belief of harm to the child. They held that the “highly-prejudicial tape” should have been deemed inadmissible and would have granted the defendant a new trial.

So yes, it was a close call, but in the end that will be irrelevant. A 4-3 decision has the same binding effect as if it was 7-0. Yes the dissent’s strong opinion may be used by court’s to limit the reach of Badalamenti but you can bet that many litigants will now be setting up microphones and recording devices in their kids’ backpacks, toys, rooms, etc to hopefully catch some nasty or useful evidence against their ex-spouse. Frankly, matrimonial lawyers will almost always be able to craft a “good-faith” basis why the child’s conversations should be recorded. These tapes will soon become a regular part of the divorce process.

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4 comments

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  1. underabus

    And yet, you will use this very same ruling to exonerate your clients and implicate others in the future and you KNOW you will!

    1. Oscar Michelen

      Yes, that’s the point of the article.Now that the court says its legal if it can help our client’s cause, we as lawyers, are obligated to zealously defend our clients and use all legal means to protect and defend their rights.

      1. Dee McDonald

        I live in Ga I am an aunt. My nephew is in the middle of a court battle with mom and crazy dad. I have a video with no pics show only audio of him stating his dad is mean and scary and if he makes him mad he is “dead”. This recording took place at my parents home in Ga. court is in NY. Can I show this to my nephews attorney without being sued? His dad is due happy but they need to hear the fear in this 8 yr olds voice. Please help. Ty

        1. Oscar Michelen

          Georgia is a one-person consent state as is NY. Therefore as long as he was talking to you and you consented to the recording it is legal. Good luck

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