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