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Recording Phone Conversations in New York for Use in Child Custody or Divorce

If you’re filing for divorce, you’re likely going to be told that having evidence to prove that you’re the better–or more capable–parent and thus deserving and right for that child’s custody will help your case. One of the most bitter battles you can fight legally is over the custody of your children. If you believe that the child is better off under your sole guardianship or, at least, with you the majority of the time, then having evidence to back up those claims can help your lawyer win the case for you. One type of evidence you may consider is to record phone conversations that depict the other claimant in an otherwise unflattering light. However, it may be illegal to do so, and you might just end up hurting yourself in the process.

What The Law Says

The Civil Practice Law and Rules section 4506 states that eavesdropping that was performed criminally is inadmissible in court. What constitutes eavesdropping as criminal activity? The Penal Law section 250.05 answers that question. Eavesdropping becomes illegal when you unlawfully use a wiretap or any other mechanical device to record a conversation or to listen in on someone else’s conversation. In New York, in particular, in order for wiretapping to be legal, you have to receive consent from at least one person on that call to record. That being said if you choose to record your conversations with your spouse, and your spouse alone, then you may do so legally because you consented to record the conversation. Where it becomes illegal is when you attempt to record conversations that your spouse has with other people. Unless, of course, you were able to receive consent from your spouse or that other person they’re having a conversation with on the phone.

The Loophole

With all of that said and done, there is a way to potentially record a conversation involving the young child. In this case, the court found it legal to record a conversation involving the young child if there were reasonable belief and proof that it was in the child’s best interest. This case was known as People v. Badalamenti. The case itself was criminal, but the ruling still maintains actionable implications for child custody cases.

In this situation, the boy’s father was the one who recorded the conversation. The person convicted, in 2008, was living with his girlfriend at the time and her son who was five years old at the time. The home they were living in was rented, and their landowners lived on the floor above theirs. The landlady reported that she could hear the abuse from where she lived above them. The defendant beat the five-year-old child. She confronted the defendant and told him that he could not beat the child, but the defendant replied that he could beat him if he so wanted. In fact, that he could, beat the hell out of him.

Enter the boy’s father who noticed that his son was anxious and upset about having to visit his mother. When it was time to hand him over, the boy cried and refused to get ready to leave. The father asked what was the matter, and the boy told him what was happening, to which the father refused to hand him over to the mother and her abusive boyfriend. In retaliation, the mother called the police to forcibly remove the child from the father and deliver him to her. After the child was taken, the father called the mother quite a few times, but each call went unanswered and straight to voicemail. Eventually, he was able to connect a call, but no one answered. Instead, he was able to hear both the defendant and the boy’s mother screaming at the child. The boy was crying, and the boyfriend was threatening him.

It was at this time when the father recorded the conversation utilizing a voice memo function, but at the time, did not contact the police with it. Later, the landlady continued to hear the abuse as well as the child telling them to stop hurting him. She quickly called the police and the defendant and the boy’s mother were arrested. The boy had been beaten with a belt. The boy was sent to live with his father while the court handled the case.

The father offered his audio recording of the abuse he had captured, but the defendant argued that it couldn’t be used since it violated Penal Law section 250.05. The court decided that in this case, the definition of “consent,” was considered to be vicarious consent that had to fill two properties. One, that the parent or guardian had reasonable belief that to serve the child’s best interests, the recording had to be made. Second, that the belief was objectional and reasonable as the basis to record. The court found that the father met these two properties and thus the recording was legal and admissible evidence. It was also the court’s opinion that courts in the future should consider the age and maturity of the child when it comes to parental eavesdropping and its validity and legality.

The Final Word

Because of this case, it may be possible to record conversations in instances where the child is being abused. However, it is a sensitive line, and if the court doesn’t believe that it follows the “vicarious consent,” properties, you may actually end up facing criminal charges yourself. Because of this, it’s crucial that you find a lawyer who has a keen understanding of child custody and the legality of phone conversations. Spodek Law Group can help you find the justice you seek for yourself and your child. With their 40 years of experience, they understand the importance of acquiring evidence to better your chances of receiving sole or majority custody of your child. There’s no need to muddle through the muddy waters of child custody battles alone. Spodek Law Group can be the guiding hand you need.