Wiretapped Teddy Bear Leads to $120,000 Penalty For Mother and Grandfather

High-conflict custody cases bring out the worst in people, as revealed by a recent Nebraska court decision involving a couple who married in 2001 and separated four months after the birth of their daughter in 2003.

In court proceedings in 2004 the couple were divorced and custody of their one-year-old daughter was awarded to her mother. In 2007 the child’s father brought an application for a change of custody which led to an order in favour of dad for unsupervised access with his daughter.

Upon learning that her daughter would be with her father for unsupervised visits, the child’s mom took her daughter’s favorite toy, a teddy bear, and sewed a small digital recorder inside the bear’s tummy. Mom had always suspected her ex-husband was physically and verbally abusing their daughter and just before the final court hearing with respect to custody, mother had all the audio recordings transcribed by her father, selecting those that supported her view of alleged abuse against her daughter, and sent them to her lawyer to be used in court.

The first issue before the court was a determination of the admissibility of the transcribed recordings as evidence against the child’s father. The Court ruled the recordings were not admissible because they violated Nebraska privacy laws.

Upon learning of the court’s decision, the mother destroyed the audio recordings and deleted the transcribed material from her computer files, hoping that would be the end of it. But she was wrong.

Her ex-husband was furious about the surreptitious recordings and sued her and her father in Federal Court for breach of Nebraska’s privacy law and the federal Wiretap Act.

This mother’s foray into clandestine surveillance on her ex-husband had begun much earlier than the introduction of the wired teddy bear. She had previously hired two private detectives to find proof that her ex-husband was an alcoholic and to attach a GPS to his vehicles.

None of these ploys brought the return she was seeking.

Meanwhile, back in Federal Court, the aggrieved father rounded up five more individuals whose privacy had been breached by the wired teddy bear and each of them also brought suit against the mother, including a cousin of the father, and a social worker.

As well, once the child’s daycare providers learned the teddy bear had recorded the goings-on at the daycare centre, they removed the little girl from their program.

Mother’s lawyer argued that his client gave “vicarious consent” on behalf of her daughter to the wire taps, to establish that one of the parties to the recordings were aware of them. The Nebraska Federal Court was not impressed with this argument and ruled that five other innocent parties had been subjected to the illegal recordings who had no relation to the father, whose behavior was being monitored by his ex-wife.

The Court ruled that under the federal Wiretap law, a penalty of $10,000 per incident would be levied against the parties in breach of the law. Mr. Justice F.A. Gossett III ordered that mother and her father each pay $60,000 to compensate the six successful plaintiffs.

Despite the outcome, the Court acknowledged that in certain cases involving young children, eavesdropping may provide the only solution, however, the law on wiretaps was unequivocal until amended to allow exceptions.

Lawdiva aka Georgialee Lang

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6 thoughts on “Wiretapped Teddy Bear Leads to $120,000 Penalty For Mother and Grandfather

  1. In a case, it was once tried where I was involved as the Court evaluator investigator. Some conversations between the spouses were secretly recorded by one of them during pick up and delivery of the child for access visits. A transcript was submitted to the Court as an attachment to an affidavit. Upon further examination, the transcript proved to be very selective to favour one side, and misrepresented the overall total conversations. The secret recording effort backfired, and revealed that the parent doing the recording, to be rather manipulative and unreliable in testimony.

  2. I am a little puzzled by the Court’s ruling here; the Court ruled that five persons were “innocent parties”, yet awarded damages to six plaintiffs, one of whom presumably included the ex-spouse. That does not appear to be consistent with the Nebraska law. In Canada, it seems to me that it is either a case of “one party consent” to record, or it is not; the status of the other party does not seem to be an overly important issue.

    Not being a lawyer, it strikes me that the vicarious consent has merit in the case of an infant. And given the instances in Canada of “nanny cam” recordings being accepted in court, apparently many of our judges agree. In my business, my phone system is set up to record, on a one-party-consent basis, conversations that I decide should be recorded. I make no apologies for that. Dealing with sensitive issues or business deals worth many times the worth of my company, I consider it important to obtain and preserve a record of all transactions or negotiations.

    But that brings me to Mr. Forseth’s excellent comments concerning selective disclosure. My policy is if one records, one records everything concerning the issue, warts and all, and in the event of a dispute, all is preserved and all is disclosed if it comes to that. Nothing destroys the credibility of a party more than the suggestion that they are trying to manipulate the court process by trying to slant the evidence in their favour. Although I often have issues with judge’s decisions on a number of mostly criminal matters, I also recognize that most judges are not stupid.

  3. I feel like the term ‘innocent party’ was used to indicate those who were not involved in the family law action, rather than in any legal sense.

    I’m in total agreement that when a party attempts to mislead by selective omission, it tends to come back on that person. All or nothing, please, and while you’re at it, have that recording transcribed by a reputable or certified organization instead of someone who has an obvious motive for fudging the facts.

  4. I am so happy to read this. This is the type of detail that needs to be given and not the random misinformation that is at the other blogs. Appreciate your sharing this.

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