Does Surveilling Someone Using a PI Violate an Order of Protection During a New York Divorce?

detective desktopIn Anonymous v. Anonymous, a husband filed a motion for summary judgment to dismiss his wife’s petition alleging he’d violated an order of protection. The order of protection had been entered without a finding of fault and directed him to stay at least 1,000 feet away from the wife’s residence and job, except for court-ordered child visitation or to go to church on Sundays. It also ordered him not to commit a family or criminal offense against her.

The wife alleged that the husband had retained a private investigator. The PI recorded the wife, and the DVD showed she’d gone into a motel and had an affair with a priest at the church where she worked. The wife claimed the husband gave the DVD to her employers, and this forced her resignation.

She argued the husband had no legitimate purpose in sending a PI to follow her, and his goal was just to cause her to lose her job and humiliate her. She claimed this was a violation of the 2009 order of protection.

The wife had sued for divorce in 2008. The husband answered and counterclaimed for divorce against the wife, claiming she was having sex with a particular individual. He then amended his counterclaim to allege she was committing adultery with the priest. The wife argued that the husband hired the PI after filing the answer and counterclaims and that he’d violated the order of protection by acting through an agent.

In the summary judgment motion, the wife didn’t dispute she was having an affair with the priest. The husband claimed that the priest in question routinely administered mass to his family while they all went to church together and that he was upset about this. He also said that he told one of the other priests about the adultery and photos, and he reluctantly agreed to discuss it with a superior in the church. He then gave the superior a copy of the DVD taken by the investigator.

The court explained that a party that is bound to obey an order asking him not to commit certain acts can be guilty of contempt of the order by asking others to violate the order without personally and directly violating the order himself. However, the court explained, it wasn’t improper for the husband to retain a PI for a proper and legitimate purpose.

The husband had a right to gather evidence up to the date of the divorce trial in order to support his counterclaims. He didn’t simply have to accept the wife’s word that the affair was over, and actually the wife had lied about this. The court ruled that under the circumstances, hiring the PI was not an unlawful intrusion into the wife’s rights under the order of protection.

The court noted that if the husband had the wife followed by a PI with the purpose of getting material with which to cause her to lose her job, this might qualify as harassment in the second degree. However, the fact that the priest was still administering mass to the family meant that the husband had shown a legitimate and justifiable purpose in talking to the church officials about his wife’s adultery. In this case, the church officials had asked for the DVD.

Accordingly, the court granted summary judgment for the husband, finding that he hadn’t retained the PI for an improper reason.

If you are planning to get a divorce 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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