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INTRAFAMILY WIRETAPPING IN NEW YORK CUSTODY DISPUTES (Pt. 2)

June 2006, By John Virdone and Jerome Wisselman

Is It Admissible? Part Two of a Two-Part Article.

In last month's newsletter we discussed federal and New York State law on the subject of the admissibility in custody proceedings of recorded conversations between children and their parents. In general, the verdict is that such recordings do not violate federal law, but they often do go against New York State Penal Law § 250.05, which in most cases prohibits the recording of conversations without the consent of at least one of the parties. This leads to the questions of who may consent when one of the parties is a child, and whether there are any legal uses that can be made of such recorded conversations.

Can Illegally Obtained Recordings Ever Be Used?

CPLR § 4506 prohibits the use of an unlawfully recorded conversation in any trial, hearing or proceeding before any court, grand jury, legislative committee, department, officer, agency, regulatory body, or other authority of the state or political subdivision thereof except in the civil or criminal trial against a person who is alleged to have committed the crime of eavesdropping. Pursuant to § 4506, an aggrieved person can make a motion to suppress such illegal recording.

In Berk v. Berk, 70 A.D. 2d 943 (2nd Dept. 1979), the mother appealed the denial of her motion to suppress, pursuant CPLR § 4506, certain taped telephone conversations between herself and her infant sons, which the father had recorded and offered as evidence in a custody dispute. The Appellate Division reversed the Family Court, and unequivocally held, pursuant to CPLR § 4506, that because there was no proof that at least one party consented to the conversations, the taped recordings were inadmissible. In I.K v. M.K., 194 Misc 2d 608 (2003), Judge Judith Gische clarified that there are no recognized exceptions to the rule that illegally obtained tape recordings are inadmissible, even in a child custody proceeding. In addition, the judge ruled that the tapes could not be used by experts or other professionals who might be called as a witness in the custody trial. She noted that the express language in § 4506 "applies to exclude not only the tapes themselves, but also to the use of evidence "derived" from the tapes." Therefore, she held that an expert could not base an opinion upon the content of the suppressed tapes.

However, Judge Gische authorized the father to offer the tapes to his son's treating psychologist, who would never be called to trial in connection with the custody case. She reasoned that since neither parent had temporary custody of the children, they both had equal authority to present the tapes to the treating psychologist, so that in his discretion, he could determine the appropriate therapeutic course of action for the child.

The Law Guardian's Consent

The discussion about whether a parent may consent for the child raises another question - whether the law guardian appointed to the case may consent to wiretapping on behalf of a child who is too young or immature. Before we can answer that question, we must take a close look at the role of the law guardian. In custody matters, law guardians are appointed at the discretion of the judge and have a dual, or hybrid, role. See CPLR §1201, and §202.16(f) of the Uniform Rules of Trial Courts and FCA §§ 241-243 & 249. The law guardian is part advocate and part guardian ad litem, with a statutory mandate to represent both the child's wishes and best interests. See Somber, Diane, Defining The Role of Law Guardian in New York State by Statute, Standards and Case Law. 19 Touro L. Rev. 529, 530-31 (Winter/Spring 2003). As an advocate, the law guardian must argue vigorously for his or her client's wishes. However, as a guardian ad litem, he or she must represent the child's best interests. Id at 531 and Carballeira v. Shumway, 273 A.D. 2d 753 (3rd Dept. 2000). A guardian ad litem is a special guardian appointed by the court in which a particular litigation is pending to represent an infant ward or unborn person in that particular litigation, and the status of guardian ad litem exists only in that specific litigation in which the appointment occurs. Stuckey, Roy T., Guardian Ad Litem As Surrogate Parents: Implications for Role Definition and Confidentiality. 64 Fordham L. Rev. 1785 (March 1996).

Because the law guardian serves as an advocate for the best interest of the child and as a fact finder for courts, he or she has no power or authority to consent on behalf of the child to any instances of wiretapping.

Criminal Courts Are Even Stricter

In People v. Heffner, 187 Misc 2d 617 (Renesselar County, 2001), the defendant was accused of sexually abusing a 12-year-old child in the second degree. The victim's parents surreptitiously recorded telephone conversations between the victim and defendant. It was undisputed that neither party to the telephone conversation consented to the tape recording. In addition, the child was not aware that his parents were listening to and taping the conversation. The People sought to introduce the tape recording into the trial as evidence. On defendant's motion, the court suppressed the tape-recorded conversations stating "this court is bound by the letter of the law, and no matter how laudable the motive of the parents, their conduct was in violation of Penal Law § 250.05, and therefore, defendant's motion to suppress the tape recorded conversations must be granted." Id. at 620.

However, in People v, Bastian,125 A.D. 2d 909 (3rd Dept, 1986), the defendant pled guilty to endangering the welfare of a child, but appealed from the previous holding of the trial court that the 14-year-old complainant and her parents by their conduct consented to the tape recording of a telephone conversation between the child and the 61-year-old defendant. On appeal, the Appellate Division affirmed the decision of the trial court indicating that the child did sign a waiver form giving permission to the police to overhear and tape the conversion. In addition, her parents were present during the recording and conversation, were informed of the plan to tape record the conversation, and cooperated in the matter by participating in the arrangement of the call. Therefore, the court held, "there was ample evidence that the complainant [child] and her parents freely and voluntarily, in the spirit of cooperation, consented to the tape recording." Id at 910.

In People v. Hill, 176 A.D. 2d. 375 (3rd Dept, 1991), the defendant pled guilty to two counts of sodomy in the third degree and one count of endangering the welfare of the child. On appeal, the defendant argued that the trial court erred in refusing to suppress two recorded conversations between himself and the 15-year-old victim. On appeal, the court affirmed, indicating that the victim consented to having the conversations recorded by the police, and, in addition, that the police obtained the mother's permission by phone before the taping occurred.

Consistent with the holding of Judge Gishe In I.K. v. M.K., the recordings in these cases were deemed admissible only when the child consented to the recording. In fact, these criminal courts were even more strict than Judge Gishe in requiring the child's consent because Judge Gische seemed to leave open the possibility that a parent could consent to wiretapping on behalf of the child, if that parent did not have such a high self-interest in the outcome of the custody case.

No court, criminal or civil, has ever defined or proclaimed the exact age when a child could consent to a wiretapping. It appears that the courts will look at this question on a case-by-case basis. It may be helpful to note that the children in the three criminal cases cited here were 12, 14 and 15 years old, and their consent (if given) was deemed adequate to permit admission of the recorded conversations.

What's a Parent to Do?

Based on a review of the federal and state court decisions in New York, it is reasonable to conclude that intrafamilial wiretapping in the context of a custody dispute is not, at the moment, a violation of federal law in the Second Circuit. Nevertheless, it is illegal pursuant to New York Penal Law § 250.05, if the child is too young, immature or refuses to give his or her consent to the parent. In that circumstance, if the parent or custodian proceeds to record the conversation, such recording will be suppressed in New York State Courts pursuant to CPLR § 4506. Therefore, in New York custody matters, if a parent or custodian suspects that if the other parent or party is making improper comments to the child, wiretapping may not be a viable means to obtain evidence. If the child is too young, immature or refuses to give his or her consent for the recording, it will be inadmissible.

Although there are no reported cases on point as yet, a parent or custodian who engages in illegal wiretapping in a custody situation may risk being prosecuted for the recording. Rather than making such a recording, a parent should report concerns about untoward conversations between the child and the other parent to the law guardian, to the forensic expert, if any, and to the court. Certainly, the forensic expert could explore the matter with the parties and the child and extrapolate any improper conduct. In addition, the law guardian could interview the child to determine whether he or she has been subjected to improper conversations. Also, simultaneously, a party who believes that such improper conversations are occurring, should, in the best interests of the child, make a motion to terminate the offending parties' visitation or custody rights, or in the alternative, seek an order of supervised visitation for the offending party until the problem is resolved.