Ride the Lightning

NY High Court Says Parents Can Legally Eavesdrop on Kids

April 12, 2016

On April 5^th, the New York Court of Appeals, the state's highest court, ruled that a parent who believes their minor child is in danger can legally record an overheard conversation by giving consent on behalf of their child, countering a state wiretapping law that requires the consent of at least one person on the call.

The court affirmed a decision of a lower court that a recording made by a child's father, who heard his ex-wife's boyfriend, Anthony Badalamenti, threatening to punch his son in the face, was admissible evidence in the underlying criminal trial against Badalamenti, on the grounds that vicarious consent was given by the father on behalf of his son to be recorded because the father believed his son was in danger.

The call had been unintentionally answered by the mother's cell phone which is why the father heard the threats to his son and recorded them. Some months after making the recording in 2008, the building's landlady called the police after hearing screams and crying from the apartment. Police arrested Badalamenti and the mother. The former was charged with assault and the boy's father turned over the recording which was played during the criminal trial. Badalamenti received seven years in prison.

The court applied the vicarious consent doctrine which recognizes the long-established principle that the law protects the right of a parent or guardian to take actions he or she considers to be in the child's best interests. The court noted that the parent or guardian who acted in bad faith and was merely curious about the child's conversations cannot give consent and could be held liable for eavesdropping, which could be determined by the court.

Yet another new slide for our Electronic Evidence in Family Law Cases CLE.

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