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

It can be tempting in the midst of a contentious divorce or child custody proceeding to record the other parent’s orspy call your spouse’s phone calls with a mistress or his/her conversation with his child. However, if the evidence you obtain was obtained illegally, you will not be able to use it as evidence in the courtroom, and in some cases there are criminal consequences.

Under Civil Practice Law and Rules section 4506, evidence you obtain through criminal eavesdropping is inadmissible. Under Penal Law section 250.05, you are guilty of eavesdropping if you unlawfully engage in wiretapping or mechanically overhearing someone else’s conversation.

In New York, it is illegal to wiretap without the consent of at least one person on a call. Accordingly, you can record your phone conversations with your spouse or the other parent (because you’ve consented to it), but not your spouse’s phone conversations with other people unless you have consent from your spouse or the other person.

However, the highest court in New York has established an exception whereby a parent can legally eavesdrop on a young child if they reasonably believe it’s in the child’s best interest. In People v. Badalamenti, the court considered the admissibility of a cellphone recording of a man threatening to beat his live-in girlfriend’s son. Although it was a criminal case, the court’s ruling and reasoning have implications for child custody cases.

The boy’s father was the one who recorded the conversation. In 2008, the defendant lived with his girlfriend and her five-year-old son. The owners of the house lived on a different floor, and the landlady could hear the abuse through the ceiling. The landlady told the defendant it wasn’t acceptable to beat kids, but the defendant responded he could beat the hell out of the child if he lied.

The boy’s father had visitation and noticed that when it was time for his son to go home to his mother, the child cried and refused to get ready. After talking to his son, the father then told the mother he wouldn’t return the child to her. The mother contacted the police and required the father to release the child back to the mother. At one point, the father called the mother using his own cell phone, and the calls went directly to voicemail.

Eventually, a call went through, but nobody said anything to the father. The line was open, so the father could hear what was happening. The defendant and the child’s mother were screaming at the crying child, and the defendant was making threats. The father recorded what was happening with a voice memo function, but he didn’t contact the police.

Later, the landlady heard more abuse and the child asking the defendant to stop hurting him. The landlady called the police, who arrested the defendant and the child’s mother. The child had been badly beaten with a belt. He went to live with his father, who then told the police about the recording on his cellphone. The defendant was charged with assault, among other things. In connection with the criminal proceedings against him, he objected to the use of the father’s audiotape, stating it violated Penal Law section 250.05.

The court held that the definition of “consent” in the context of the mechanical overhearing of a conversation under Penal Law section 250.00(2) includes vicarious consent on behalf of a child. In order to decide whether to apply the doctrine of vicarious consent, a court is supposed to determine whether:  (1) a parent or guardian has a good faith belief that the recording of the conversation is necessary to serve the best interests of the child, and (2) there’s an objectively reasonable basis for this belief.

The court explained that the father had an objectively reasonable basis to believe it was necessary for his son’s welfare to record the violent conversation he heard. The court reasoned that the father didn’t ask for consent from any party to the conversation, but the father gave consent to the recording on behalf of his child and recorded it in good faith. The court’s opinion noted that courts should consider the child’s maturity and age when considering parental eavesdropping.

If you are planning to get a divorce or seek custody of your child in New York, contact the Law and Mediation Office of Darren M. Shapiro at 516-333-6555 or via our online form. Our principal Darren Shapiro is an experienced, compassionate family law attorney and mediator.

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