Judge cautions courts must consider age, maturity of child
By Michael Virtanen
Associated Press
ALBANY, N.Y. (AP) - Parents can legally eavesdrop on young children if they reasonably believe it would be in the child's best interest, the state's highest court ruled Tuesday, establishing an exception to New York law against wiretaps without the consent of at least one person on a call.
The 4-3 ruling by the Court of Appeals involved a cellphone recording of a man threatening to beat the 5-year-old son of his live-in girlfriend. The boy's father recorded the conversation.
"The father had a good faith, objectively reasonable basis to believe that it was necessary for the welfare of his son to record the violent conversation he found himself listening to," Judge Eugene Fahey wrote for the majority. He cautioned that the ruling shouldn't be interpreted as a way to avoid criminal liability for wiretaps "when a parent acts in bad faith."
The live-in boyfriend, Anthony Badalamenti, was later convicted of child endangerment, assault and weapon possession. His attorney challenged the tape as inadmissible evidence from illegal eavesdropping.
Fahey cautioned that courts must consider the age and maturity of the child in considering parental eavesdropping. He didn't specify an age. A key question "is whether the child is capable of formulating well-reasoned judgments of his or her own," he wrote.
Chief Judge Janet DiFiore and Judges Eugene Pigott Jr. and Michael Garcia agreed with Fahey.
In a dissent, Judge Leslie Stein wrote that the issue raises many policy concerns that should be left to the Legislature, with implications for divorce and custody disputes, criminal proceedings against the minor or others, juvenile delinquency and any other dispute within families.
Even in this case, the father didn't notify authorities or share the tape until after Badalamenti and the boy's mother were arrested months later when neighbors heard screaming and crying and called police, Stein wrote. The majority's ruling fails to answer whether a parent can eavesdrop over the explicit refusal of an older child who's talking to his or her other parent, she wrote.
Judges Jenny Rivera and Sheila Abdus-Salaam joined Stein's dissent.
"We are pleased 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," District Attorney Madeline Singas said.
But Attorney Marianne Karas, who represented Badalamenti, 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. If you are in mortal danger, would you like me to record this conversation? Would that help you?"
In a previous New York case, a midlevel court in Brooklyn upheld a mother's use of putting a recorder in her autistic son's backpack to tape suspected abuse by his bus matron, which was allowed as evidence of child endangerment. However, Tuesday's decision establishes case law for the state expected to have a larger impact.
"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 New York State Bar Association's Family Law 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."
The New York court said the "vicarious consent" doctrine was adopted by a federal court in Utah in 1993 and the federal appeals court in Cincinnati in 1998.
At least a dozen other states have recognized that doctrine, according to Nassau County prosecutors who used the tape against Badalamenti. They are Alabama, Arizona, Delaware, Iowa, Louisiana, Maine, Massachusetts, New Jersey, North Carolina, South Carolina, Tennessee and Texas.
Published: Thu, Apr 07, 2016
