New York’s Top Court Allows Parents to Record Kids’ Conversations

(Photo: Fox)

(Photo: Fox)

The New York State Court of Appeals has ruled that parents have the right to eavesdrop on young children, with the ruling setting precedence over a state law against wiretaps without the permission of at least one of the persons involved in the call.

The determination was made by a 4-3 vote that decided monitoring is "justified when a parent or guardian reasonably believes it would be in the child's best interests to listen and tape phone conversations."

The ruling concerned a case that involved a recording of Anthony Badalamenti in which he was threatening to beat a 5-year-old boy. The victim's father made the recording, reports the Associated Press.

Badalamenti lived with the child's mother and was convicted of child endangerment, assault, and weapon possession. When Badalamenti's lawyer disputed the tape as inadmissible under state law, he stated his challenge was upheld by a mid-level appeals court. But all that changed on Tuesday when the state's top court took exception to the state law.

"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.

The judge was careful to include that the ruling should not be misinterpreted as a way to sidestep criminal liability for wiretapping "when a parent acts in bad faith."

Fahey also cautioned that courts must also consider the maturity and age of the young person when weighing whether some parental eavesdropping is appropriate.

The judge did not specify what age cutoff that would be, but he did write in his decision that the question "is whether the child is capable of formulating well-reasoned judgments of his or her own."

One of the dissenting judges, Judge Leslie Stein, wrote that many policy concerns are issues that should be left to the discretion of the Legislature. There are implications concerning divorce, criminal proceedings against minors, child custody disputes, juvenile delinquency, and any additional issues involving family disputes.

The biological father, in this case, did not notify authorities or allow the tape to be heard by anyone until Badalamenti and the boy's mother were arrested months after the recording was created. Neighbors had contacted authorities because of screaming and crying emitting from the home.

The ruling also did not address whether a parent can eavesdrop even if an older child explicitly objects.

A New York City mother with an autistic child put a recorder in her son's backpack to tape his bus matron, whom she suspected of abuse. This recording was allowed to be included as evidence of child endangerment. A New York midlevel court supported the use of the recorder.

Attorney Eric Tepper, the vice chairperson of the New York State Bar Association's Family Law Section, said:

"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. 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."

Martha Neil, reporting for the American Bar Association Journal, writes the New York court is by no means the only state that has adopted the "vicarious consent" policy. In 1993, the Utah federal court affirmed the doctrine, as did a Cincinnati court in 1998. And a minimum of 12 other states have recognized the law, say Nassau County prosecutors in the Badalamenti case.

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