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Illegal Recording and California Family Law


If you’ve ever thought about recording your spouse in a compromising situation, here is a case that should make you think twice. Although the case, In re M.H., decided last month, is a juvenile delinquency case–not a family law case — the situation is analogous to the family law matter where one spouse maybe records a conversation with the other spouse or puts a GPS monitor on the other spouse’s car.

What happened in In re M.H., which was decided by the local branch of the California Court of Appeal here in San Diego, was more embarrassing and ultimately more tragic. In the M.H. case, an 11th grader at San Diego’s University City High School, used his cell phone to both visually and audibly record a ninth grade student in the boys room “either masturbating or jokingly pretending to do so”. The video was uploaded to the cell phone user’s Snapchat application with the caption, “”I think this dude is jacking off’ or some similar title”. The audio portion of the tape captured the ninth grader groaning. Tragically, about two weeks later, the ninth grader committed suicide, leaving behind a note that said, “‘I can’t handle school anymore and I have no friends'”.

The San Diego District Attorney’s Office filed a juvenile delinquency case, arguing that the defendant engaged in an unauthorized invasion of privacy through use of a cell phone camera”. Under California law, this is a misdemeanor, and the judge sentenced the student to probation with numerous restrictions, including several restrictions on his use of social media.

The defendant appealed, saying that all he captured on his cell phone were the socks and shoes the other student was wearing, as this apparently was the only aspect of the student that could be seen between the bottom of the divider of the stall he was in and the floor, even though there was no door to the stall. Another appellate argument was that people using public restrooms do not have an expectation of privacy. There were also other arguments made to the appeals court.

The appeals court, in a 3-0 decision, authorized by Justice Gilbert Nares, rejected the arguments, reasoning that the ninth grader could have reasonably expected that other persons in the bathroom would tell still others about what they had seen and heard, but that he certainly would not have expected that his time in the restroom would actually be videotaped. The Court of Appeal also took no comfort in the fact that apparently Snapchat videos do not stay in the public domain permanently.

As to the fact that only the student’s shoes and socks could be seen, apparently the student wore distinct footwear and socks, so those who watched the video upload (or many who might have seen it) would have known who the student was.

All of this goes to show that secret recordings in a family law case, such as adulterous behavior, or other use of technology to prove certain behavior, is not condoned and may even be criminal in nature. In addition, in family law matters, California is a no-fault state. This means that the person seeking the divorce is not required to show that the cause of the breakup is the other person’s fault. Indeed, Family Code section 2335 provides that evidence of specific acts of misconduct is inadmissible.

Meanwhile, Family Code section 2022 makes evidence obtained by eavesdropping in violation of criminal law inadmissible. (The only instance where this improper evidence could be considered would be in contested custody cases where the behavior at issue is relevant to the best interests of the child.)

Justice Nares was joined in his opinion by Justice O’Rourke and Judge Ronald Prager. The trial judges had been the Hon. Kenneth So and the Hon. Roderick Shelton.

Incidentally, the Court of Appeal made a point of saying “[t]he causal relationship, if any, between [the] video and [the] suicide is not before us and we express no opinion on that issue”.

The decision in the In re M.H. case was certified for publication, which means it can be relied on as precedent (and indeed is binding) on judges and lawyers throughout California — not just here in San Diego County.

The post Illegal Recording and California Family Law appeared first on Andy Cook Law.

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