Intrafamily Wiretapping in New York Custody Disputes Part One


June 2006, By John Virdone and Jerome Wisselman

Part One of a Two-Part Article

Is It Admissible? The sensational, celebrity-filled Anthony Pellicano wiretapping case in California has been grabbing headlines for weeks now. Pellicano, a private detective, is accused, along with several others, of illegally listening in on the private conversations of some of Hollywood's elite in order to gain an advantage for his clients in legal and other matters. Wiretapping issues have also found their way into family law matters.

Suppose you represent a mother in a custody matter. In the midst of the dispute, the mother, who has temporary custody, suspects, from conversations with her 6-year-old son, that the father is making obscene comments about her to their child, perhaps to alienate the child from her, or because the father has a psychological problem. In an effort to capture the improper comments, the mother programs a digital answering machine to intercept and record the father's conversations with the child. The recording clearly demonstrates that the father is indeed making outrageous, profane and even sexually explicit comments about the mother to the child. The mother then makes another recording of the conversation onto a cassette tape, and presents that tape to her attorneys. The mother wants her attorneys to turn over that tape to the court-appointed forensic psychologist, and wants him/her to offer it into evidence at the custody hearing.

There are several issues that have to be considered before you can use the tape. The questions to be answered are: 1) Is the mother's recording legal under Federal and New York State law? 2) Is the tape admissible at the custody hearing in New York State? 3) May the court-appointed forensic psychologist hear and use the tape? and 4) May the law guardian consent to the recording on behalf of the child?

Federal Statutory Law

First, it is important to note that there is a distinction between the applicability of federal law and New York State law on this topic.

The applicable federal law is Title II of the Omnibus Crime Control and Safe Street Act of 1968. (Title III) 18 U.S.C. §§ 2510-2520. Title III § 2511 provides in part as follows: "1) Except as otherwise specifically provided in this chapter any person who- a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication . Shall be punished as provided in subsection (4) or shall be subjected to suit as provided in subsection (5) ¶ (4)(a) Except as provided in paragraph (b) of this subsection or in subsection (5), whoever violates subsection (1) of this section shall be fined under this title or imprisoned not more than five years, or both."

Section 2510 (4) defines "intercept" as the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. Section 2510(5)(a)(I) provides: "(5) 'electronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire, oral, or electronic communication other than[:] (a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (I) furnished to the subscriber or user by a provider of wire or electronic communication service in the ordinary course of its business and being used by the subscriber or user in the ordinary course of its business or furnished by such subscriber or user for connection to the facilities of such service and used in the ordinary course of its business."

How have these statutes been interpreted by the courts when it is family members doing the wiretapping? In Anonymous v. Anonymous, 558 F.2d 677(2nd Cir. 1977), the Second Circuit ruled, in an issue of first impression, that interfamilial wiretapping in the midst of mere domestic conflicts is not a violation of the statute. In Anonymous, the wife had brought a civil action against her former husband, alleging that during the 2 years preceding their divorce, he had unlawfully intercepted and taped her telephone conversations with their daughter in violation of 18 U.S.C. § 2511. The court in Anonymous stated: "The facts in the instant case, [by contrast] present a purely domestic conflict - a dispute between a wife and her ex-husband over the custody of their children - a matter clearly to be handled by the state courts." 558 F.2d at 678. In Janecka v. Franklin 843 F.2d 110 (2nd Cir. 1988), the Second Circuit reaffirmed the central holding in Anonymous. In that matter, the ex-wife sued her former husband pursuant to 18 U.S.C. § 2511 for recording her conversations with her children during a post divorce custody dispute. The father admitted to in-stalling a telephone-recording device in his home telephone in order to capture conversations between his ex-wife and his children. He claimed he began doing this after he observed his daughter crying during a telephone conversation with her mother, and when he picked up the phone extension, heard his ex-wife discussing aspects of the custody dispute.

Nevertheless, other Circuits have not recognized an interspousal wiretapping exception to the statute. See Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir.1991) (concluding that Title III applies to interspousal wiretapping); Kempf v. Kempf, 868 F.2d 970, 972-73 (8th Cir.1989) (same); Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984) (same); U.S. v. Jones, 542 F.2d 661, 667 (6th Cir.1976) (same); but also, see Pollock v. Pollock 154 F.3rd 601 (6th Cir 1998) (Circuit court held interspousal wiretapping was permissible, and adopted a vicarious consent doctrine, particularly in situations where verbal, emotional or sexual abuse by the other parent makes such a doctrine necessary to protect the child from harm.)

Recently, however, in Glazer v. Glazer, 347 F.2d 1212, 1215 (11th Cir. 2003), the Eleventh Circuit Court reversed the holding in Simpson v. Simpson, 490 F.2d 803 (5th Cir 1974), a case cited by the Second Circuit in Anonymous, indicating that no exception exists for interspousal wiretapping. Therefore, although, for the moment, interspousal wiretapping is not a violation of Title III in the Second Circuit, the reversal of Simpson may leave the Anonymous holding vulnerable.

What Is an Illegal Wiretap?

In New York State, Penal Law § 250.05 generally prohibits the recording of conversations without the consent of at least one of the parties. It states as follows: "A person is guilty of eavesdropping when he unlawfully engages in wiretapping, mechanical overhearing of a conversation, or unlawful interception of a telephonic or telegraphic communication." Violations of this section are punishable as a class E felony.

If consent of one of the parties is required to make the recording legal, may a parent consent on behalf of the child? The most recent New York case on interspousal wiretapping in the context of a custody dispute is I.K. v. M.K., 194 Misc 2d 608, 753 NYS 2d 828 (2003). In that matter, the father tape recorded telephone conversations between the children and their mother over a period of 3 days, and sought to introduce the recordings at trial in a pending custody proceeding. The mother moved to suppress the recordings pursuant to CPLR § 4506. The court in I.K v. M.K. indicated that in order for the recording to be permissible, a child must be legally able to give his or her consent to it. Judge Judith Gische ruled that, in this case, the children were too young to give their own legal consent to the tape recording of the conversations, and therefore, "there is no question that the tape recordings are illegal eavesdropping under New York State law." The court reasoned that the custodial parent could not "consent" to the recording on behalf of the child and stated: "The father's so-called consent on behalf of the children, in this context, is not valid. At the time the father tape-recorded these conversations, he knew that the parties were going to be involved in a custody trial. Indeed trial dates had already been set. His decision to tape record the conversations was inextricably intertwined with his self-interest in obtaining evidence for that custody trial. Since his personal interests cannot be separated from his decision to 'consent' on the children's behalf, it has no legal significance in this context." Accordingly, Judge Gische suppressed the tapes and any transcriptions thereof, and prohibited their introduction into evidence at trial.

In her decision in I.K v. M.K., Judge Gische distinguished the matter at hand from the decision of Johnson v. Johnson, 235 A.D. 2d 217, 652 NYS 2d 504 (1st Dept. 1997), in which the Appellate Division held there was no unlawful eavesdropping. In Johnson, the issue was whether audio and videotapes made by the wife over a period of time in the home, where the parties resided, and which she submitted as exhibits to her custody motion, were admissible at trial. The Appellate Division held that there was no issue of eavesdropping relating to these recordings that would warrant suppression under CPLR § 4506. However, the appellate court did not elaborate on the content of the tapes or whether one of the parties had consented to them. For this reason, it is dubious that the holding in Johnson could be applied to determine future cases.

Nonetheless, one court has determined based on the Johnson decision that "the eavesdropping statutes do not apply to [these] non-aural (video) tapes, which were set up in the common areas of the marital home, owned by both parties where they both resided." Dushaj v. Dushaj, 12/7/2000 NYLJ 30, (col, 4.). In Dushaj, during a divorce proceeding, the parents cross-moved for pendente lite custody of the child. The defendant also moved to suppress video surveillance tapes of her and her daughter made by the plaintiff. The trial court denied defendant's request to suppress the videotapes. It stated that plaintiff installed the videotape recorder in the playroom and kitchen for the marital home to observe the behavior of the defendant and their 2-year-old daughter. The Dushaj court, citing Johnson, supra, indicated, in its discretion, that "the best interests of the child will be served by the disclosure of the relevant video tapes." In addition, the court held that "in this instance, in light of the child's young age, the use of the videos will not undermine the trust and confidence that should exist between parent and child. Rather they will provide the forensic expert with additional relevant and necessary information which he will not be able to otherwise obtain from this pre-verbal toddler." Therefore, although the Johnson decision is ambiguous because it did not explain why it held that certain audio and videotaped recordings of the father interacting with the child in the marital home were not unlawful, it cannot be totally discounted.

Next month, we look at whether the law guardian may grant permission to record conversations between a child and a third party and at the general advisability of attempting to have recordings of parent/child discussions admitted in custody proceedings.

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