Is It Illegal to Record Someone Without Their Consent?

During a complex and protracted divorce or child custody case, you may be tempted to obtain evidence concerning your spouse’s conduct in any way you can. However, your White Plains divorce attorney will warn you that only specific types of recordings are admissible as evidence in court.

Let us discuss in detail the topic of recording someone without their consent in a lawful manner. Here are the key points to remember. If you need help with a divorce or family law case, contact Douglas Family Law Group today.

New York is a One-Party Consent State

New York law allows you to record your own conversations with another party, even without their consent. The law states that if one of the two people engaged in the conversation agrees to the recording, it is legally performed.

However, if you record conversations to which you are not a party (such as between your spouse and the person they are having an affair with), you are guilty of eavesdropping.

According to New York Penal Law 250.05, eavesdropping is the offense of “wiretapping, mechanical overhearing of a conversation, or intercepting or accessing of an electronic communication.”

The Exception to the Rule: People vs. Badalamenti

In 2016, the Supreme Court of New York admitted that a parent can legally eavesdrop on their young child if they believe it is in the child’s best interests. In the People vs. Badalamenti case, a father was informed that the live-in boyfriend of his child’s mother was physically abusing the child (5 years old).

The father made a call to the mother’s mobile phone. Nobody talked, but the line remained open and the father heard the live-in boyfriend and the mother screaming and making threats to the child. The father recorded what was happening and the evidence was accepted in court.

The court reasoned that the father had a reasonable basis for his suspicions that the child was abused. Also, given the young age of the child, the court considered that the father had a good-faith reason to believe the recording was necessary for the best interests of the child.

Types of Interactions that You Cannot Legally Record in New York

An experienced White Plains divorce lawyer knows that you cannot record and use as evidence the following:

New York applies the one-party consent principle to recording conversations

Text Messages or Chats

You can save and use texts and chats between you and your spouse. However, you cannot copy/record your spouse’s texts to a third party, even if you know how to unlock their mobile phone or computer.

Video Recordings

In New York, you have the right to install CCTV cameras in your home and present the recordings as evidence, provided that the cameras are not placed in the bathroom and in the bedroom.

New York Penal Law 250.45 defines unlawful surveillance in the second degree as the act of viewing, broadcasting, or recording a person:

  • In areas where the person has a reasonable expectation of privacy
  • In situations where their intimate parts are exposed
  • While engaging in sexual activities.

Electronic Communications and Online Accounts

Any information you can find on your spouse on their public social media profiles or while performing a Google search can be recorded or copied and used in court.

However, you cannot access the private messaging section of these social media profiles (live chat, Messenger, WhatsApp). It does not matter if you know your spouse’s passwords. As long as you do not have their consent, or are not party to the conversations, accessing them is unlawful.

Let a White Plains Divorce Attorney Help You Obtain Evidence

No matter what kind of wrongdoing your spouse is involved in, you have to obtain the evidence in a lawful manner in order to be able to use it in divorce or child custody hearings. The judge will not take into consideration any piece of evidence that is not obtained according to the law. Plus, you may face criminal charges for eavesdropping.

Instead, share your suspicions with your White Plains divorce attorney. Lawyers know how to access information in a legal manner and make sure that the judge accepts it as evidence. Call us at 914-615-9058 now to schedule an appointment with an experienced and dedicated lawyer!

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