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Parents can record their kid without consent when it's in the child's best interests, the New York Court of Appeals ruled this week. The decision stems from a father recording his 5-year-old son being threatened by the mother's boyfriend. The recording was admitted over objection in a criminal case as contradicting wiretap laws.
But there was a dissent, joined by several justices, pointing out that changes to the law should be made by the legislature, and that there was little guidance as to age and maturity of the child required to record without the consent of at least one other person. Meanwhile, family law attorneys, reports the Associated Press, are concerned that the ruling will lead to confusion in future civil cases, particularly divorces. Let's look at some details.
Best Interests of the Child
Although it is admittedly alarming to hear a child threatened by an adult, and it's understandable that the father recorded his ex's boyfriend, it also notable that he did nothing with the tape until after neighbors called the cops. The defendant was already arrested when he turned over the recording. Reportedly, it was weeks after charges were filed.
This lack of urgency was the basis for the defense argument that the tape should not have been admitted against the accused in violation of New York law. Attorney Marianne Karas said the court majority reached its conclusion without an initial threshold finding that the father taping the call was acting in his child's best interests.
"He didn't do anything until way way after the arrest." Karas asked, "If you are in mortal danger, would you like me to record this conversation? Would that help you?"
Can the Kid Judge?
The majority opinion does caution against reading the ruling as a wholesale abrogation of existent law on consent required for parents to record kids. Each case has its specifics. Courts must consider the age and maturity of the child in parental eavesdropping situations, the majority said, but gave no guidelines with respect to age, saying that the key question "is whether the child is capable of formulating well-reasoned judgments of his or her own."
District Attorney Madeline Singas responded to the decision with pleasure. "We are pleased," she said, "that the court accepted our common sense argument that parents absolutely have the right to use a recording such as this one to protect their child."
A Pandora's Box
The New York Bar Association's Family Law Section responded to the ruling with disappointment, however. "From my point of view, and the point of view of attorneys who practice divorce and family law, this case does potentially open up a Pandora's box," said attorney Eric Tepper, vice chairman of the section. "Even though this is a criminal case, you might envision that in custody cases or in divorce cases, a parent might be tape recording a child's communications with someone else."
Talk to a Lawyer
Whether you're embroiled in a criminal case or a divorce, speak to a lawyer. Many family law attorneys and criminal defense lawyers consult for free or a minimal fee and will be happy to talk to you about your situation.