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A father calls his ex-wife on the phone. He hears her voice, and her boyfriend’s in the background. The line is open, but the ex-wife doesn’t realize it. The father stays on the line as the boyfriend yells at and threatens the father’s 5-year old son. The father begins recording the conversation.

Is this father breaking the law?

According to the recently decided Court of Appeals (the state’s highest court) case of People v. Badalamenti, no. The father is allowed to do this (the case was actually about the admissibility of the recording in a case against the boyfriend).

Recording conversations without consent is, in fact, against the law, and out of the seven judges hearing the case, three believed that the father had broken the law, since the ex-wife and boyfriend were unknowingly recorded without giving consent. But four other judges, who comprised the majority, found otherwise.

The majority opinion acknowledges that none of the participants in the conversation gave the father consent to record it. However according to the majority, the definition of “consent” in this case includes “vicarious consent” on behalf of a minor child.

That is to say, under certain circumstances, a parent can be treated as if he has been given consent by a minor child, even though in reality the consent has not been given.

For a parent or guardian to be “given” this vicarious consent, though, the court must determine that the parent believed in good faith that making the recording was necessary to serve the best interests of the child, and that there was an “objectively reasonable basis” for this belief. The majority of judges believes that with these constraints, parents won’t be able to record any discussions just because they feel like it.

They go on to back up their opinion by pointing out that other cases decided by federal courts have recognized vicarious consent.

The dissenting judges, not surprisingly, take a very different view.

Judge Stein, writing for the dissenting judges, notes that the majority’s purpose to protect children is “laudable.”

However he says there are certain accepted guidelines that judges must follow when interpreting a statute. Judges do not have the authority to go beyond those principles; to go further is to make the law, rather than interpret it. Making laws is the legislature’s role.

Stein believes that our legislators know that “the most prevalent form of illegal eavesdropping occurs in the context of marital or family relations,” including custody disputes. Since legislators know this, he says, they would have included the vicarious consent exception, if that had been their intention.

The dissenting judges make additional and strong points that there isn’t room to set out here. But, the majority rules.

The court’s decision may lead to many more parents recording conversations. But before you do it, you might want to talk with your lawyer.

New York City and Long Island-based divorce mediator and collaborative divorce lawyer Lee Chabin helps clients end their relationships respectfully and without going to court. Contact him at lee_chabin@lc-mediate.com, (718) 229–6149, or go to http://lc-mediate.com/. Follow him on Facebook at www.facebook.com/lchabin.

Disclaimer: All material in this column is for informational purposes only and does not constitute legal advice.

Updated 5:27 pm, December 9, 2016
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