Court Of Appeals Adopts Vicarious Consent Doctrine Which Allows Recording Of A Minor Child If In The Best Interest Of The Child

Posted by Martin E. FriedlanderMay 12, 20160 Comments

The State of New York has well settled eavesdropping rules and is known as a one party consent state. As such, it is a violation of Penal Law § 250, to record a conversation that no party to the conversation consented to the recording and that evidence would be inadmissible (not able to be used in court).  However, in the case of People v. Balamenti, 2016 NY Slip Op 02556, (Ct of Appeals, 2016), the Court of Appeals carved out an exception and held that definition of consent in Penal Law § 250 includes various consent on behalf of a minor child.

In People v. Balamenti, the father of a minor child had visitation rights with his son and started notice that when it came time to return his son to the mother he would refuse to go. After having conversation with his son he became concerned and refused to give his son back to his mother. The mother contacted the police and they required the father to release the child to the mother. A few days later when the father tried to reach the mother on her phone, the call was connected but no one was on the line. The father could hear the mother and her boyfriend (the Defendant in the case) yelling and threatening to beat the child and punch him the face. The father decided to record the conversation on his phone. The attorneys' for the Defendant argued that the recording was inadmissible because it amounted to eavesdropping because no party consented to the recording.

The Court of Appeals affirmed the trial court's decision which adopted the vicarious consent doctrine, which is recognized in the federal wiretap statute by the Sixth Circuit in Pollock v. Pollock and in New York by the Appellate term in People v. Clark. The Court stated that this exemption is “rooted on a parent's need to act in the best interests of his or her child”. See People v. Balamenti. The Court detailed a narrowly defined test for vicarious consent that includes two factors for the courts to consider; 1) that a parent or guardian had a good faith belief that the recording of conversation to which the child was a party was necessary to serve the best interests of the child and 2) that there was an objectively reasonable basis for this belief.

This Court's holding is important and shifts the paradigm from prior holdings because it will change the landscape of evidence offered in a custody proceeding. Litigants will now feel empowered to record their ex-spouses with their children in what they believe are in the best interests of their child which could lead to influx of recordings that inadmissible.  That being said this is also a power tool to help litigants protect their children from abuse.

If you have ayn questions about this case or any other custody matter please contact our office at Martin Friedlander, PC at 212-321-7092 or [email protected].