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Can Audio Recordings Be Introduced into Evidence During a Custody Proceeding?

In New York State, audio recording conversations cannot be admitted into evidence without the consent of at least one of the conversation’s participants. This is the rule in Civil, Criminal, and Family Court proceedings. If the audio recording is not admissible, the Family Court judge in a custody case may not use the recorded audio to help determine custody.

A tape recording of a telephone conversation without a warrant is wiretapping. In order for a wiretapping to be admitted into evidence, there must have been the consent of at least one of the parties to the tape recording. Wiretapping is defined as the unlawful inception of a telephonic communication (see Penal Law 250.00). Wiretapping is generally committed when a person intentionally overhears a telephonic communication without the consent of a party to the communication. In New York State, without proof of consent of at least one party to conversations, taped conversations cannot be admitted into evidence. Berk v. Berk, 70 A.D. 2d, 417 (1970).

Even if one spouse pays for the telephone line, that does not mean that he or she is allowed to tape conversations that took place on the line and use them in court. In a Westchester County matrimonial case, Pica v. Pica, the husband recorded the contents of two telephone conversations between the wife and a third party on the telephone in the marital residence. The appellate court held that a conversation between the wife and a third person that was recorded by the husband without the consent of either party to the conversation violated the Penal Law and was therefore suppressed and could not be considered on the issue of child custody. 417 N.Y.S.2d 528 ( N.Y.A.D. 1979).

An issue that has come up is whether a parent can claim that he or she can give consent on behalf his or her children and therefore the audio from the conversations between the child and the other parent should be admitted into evidence. In the case I.K. v. M.K., the father argued that he could use audio recordings of conversations between the mother and the children because he is allowed to give consent on behalf of the children. The Supreme Court in Manhattan held that the father could not consent on behalf of the children to letting the audio recording into evidence. The father’s decision to tape record the conversations was based on his self-interest in obtaining evidence for the upcoming custody trial. Since his personal interests cannot be separated from his decision to “consent” on the children's behalf, it has no legal significance in this context. 753 N.Y.S.2d 828 (N.Y.Sup. 2003).

However, if the audio is admitted, whether or not the Family Court judge decides to use the audio recording and how much weight to give it comes down to the standard of the best interests of the child. The judge must weigh the probative value of the recording against society’s interest in having parents and children speak freely with each other. It is up to the discretion of the judge in these cases to determine whether and how to use any of the audio material, keeping in mind the paramount consideration of the best interests of the children. Johnson v Johnson, 652 N.Y.S.2d 504 (N.Y.A.D.,1997).

In conclusion, there are no recognized exceptions to the rule that illegally obtained tape recordings are inadmissible, even in child custody proceedings. This is apparent from New York State statutes and from numerous cases interpreting the statute. The best interests of the child standard, the standard used for all child custody proceedings, does not allow a court to disregard to rules of evidence. With more and more cell phones with audio and visual capabilities out in the marketplace, the ability to record conversations is easier than ever. People going through child custody proceedings should be aware of this development and be careful of what they say to other people, since it can be used against them in the court of law.

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