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Matrimonial and Family Law Blog

Monday, April 25, 2016

Parents Can Now Legally Eavesdrop on Children's Conversations

What are the implications for divorce and custody agreements when a child's conversations with others can be recorded?

In a new watershed decision, New York's highest court has ruled that parents may sometimes eavesdrop on their children's conversations without obtaining consent.

Typically, in New York, the consent of at least one party is required to record or wiretap a conversation. But a parent or guardian who believes it is in the minor child's best interest can make an audio or video recording of a conversation without the consent of either the child or the other party

Parents Must Be Acting in Good Faith

A recording is not legal if the parent does not genuinely believe that it is necessary, and the belief must be "objectively" reasonable to others. It is not sufficient for the parent simply to decide to do it without justification. For example, if a child were possibly being physically harmed or emotionally or sexually abused, a reasonable person might conclude that a recording would help as a step toward seeking protection for the child. But randomly recording conversations between a third party and a child who was not in danger might still not be allowed.

Is the Child Capable of Deciding What Is in His or Her Best Interests?

The decision rests on the notion of "vicarious" consent, with the parent in effect permitting the recording on behalf of the child. But as children grow older and more capable of making their own choices, the parent may not be able to choose for the child. According to the court, the test is whether a child is capable of forming well-reasoned judgments of his or best interests independently.

The decision stems from a 2008 criminal child abuse case in which a father was able to capture a recording of the child's mother's boyfriend making verbal threats to the child. While the recording was inadmissible for some purposes, it was found to be admissible with respect to a charge of child endangerment.

Implications for Divorce and Child Custody

Though resulting from a case involving serious criminal charges, the decision could pave the way for parents to use recordings against one another in divorce and custody battles. Divorcing spouses seeking to create a secret recording of their child with another party could find themselves in new legal territory and should discuss the matter with an experienced matrimonial lawyer. Those who fear that such recordings may be used against them may also want legal advice from an expert in divorce and child custody.


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