Can You Make Secret Videos to Use in a New York Child Custody, Divorce or Family Law Case?

broken videotapeDuring a heated divorce or a child custody battle in New York, both parties may try to gather evidence against the other party. Several laws protect individuals’ rights to privacy, but there are certain gaps.

The Federal Wiretapping Statute prohibits auditory wiretapping, but it doesn’t mention videotape surveillance. This means that states decide for themselves whether and when videotape surveillance is permissible.

Can you surreptitiously videotape your spouse in the home in order to get evidence for divorce or child custody proceedings? In New York, only voyeuristic video recordings are prohibited.

Under New York Penal Law section 250.40, somebody can be found guilty of unlawful surveillance in the second degree when:  (1) he surreptitiously videotapes a subject dressing, undressing, or showing their intimate parts at a place and time where that person had a reasonable expectation of privacy without knowledge or consent for his own profit, amusement, or entertainment or in order to degrade or abuse that person; (2) he surreptitiously videotapes a subject for his own or another’s sexual arousal or sexual gratification at a place and time where that person had a reasonable expectation or privacy without consent or knowledge; (3) for no legitimate reason, he intentionally videotapes a subject in a bedroom or specified other locations where nudity is common without the subject’s consent; (4) without the subject’s knowledge or consent, he videotapes under the subject’s clothes or in sexual or intimate parts of the subject; or (5) he videotapes a subject engaging in sex involving sexual or intimate parts at a place and time where the subject has a reasonable expectation of privacy without the subject’s knowledge or consent for his own amusement, entertainment, profit, sexual gratification, or arousal or in order to degrade or abuse the subject.

There are therefore certain areas where it is not illegal to videotape one’s spouse in the home. For example, a spouse could videotape his or her spouse while fully clothed in the living room, kitchen, or hallway without obtaining consent.

Surreptitious videos taken in the home can be a double-edged sword, however. They can be used by your spouse to prove his or her case. In the 2015 case of SREB v. EKEB, the court was asked to consider a child custody case in which a husband had installed audio and video surveillance devices in the marital home and recorded both the wife and their young children. The husband brought the action against the wife for full custody of their children and exclusive occupancy of their home. He claimed that the wife had abandoned the home because she stayed with her parents in another apartment for a short time.

The wife served a request for discovery, requesting any video or audiotapes made by the husband in their home. The husband didn’t produce the videos or audiotapes. The wife asked that for this reason the court accept as true all her testimony about the events he’d videotaped and audio recorded during their marriage. She also asked that the husband be precluded from offering testimony about those events, due to his noncompliance with the discovery request.

The husband argued that the recordings were obsolete technology and that he’d produced video files that were stored on an Internet cloud to the extent he could.

The court found that the discovery of the files, among other things, was relevant to the issue of custody and necessary to its determination of whether the husband should be the primary caretaker of the children.

The court reasoned that the husband’s claim that he couldn’t obtain the requested files was unconvincing in an age of cloud storage and that he was bound to take steps necessary to make sure the evidence wasn’t subject to spoliation once he had notice that the discovery of these files was needed for litigation. The court granted the relief requested in the wife’s Order to Show Cause and ordered the husband to take any action necessary to preserve the files she’d requested.

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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