Is illegally obtained evidence admissible in a custody proceeding?

Vintage photograph of women with headset listening to a recording

Abid vs. Abid (Child Custody) (Nev. Supreme Ct. – Dec. 7, 2017)

In this child custody proceeding, a father surreptitiously recorded his child and ex-wife’s conversations by hiding a recording device in the child’s backpack. Because neither the child nor the mother consented to this recording, the father’s actions likely violated NRS 200.650, which prohibits the surreptitious recording of nonconsenting individuals’ private conversations. The question presented is whether the district court abused its discretion by providing the recordings to a psychologist appointed by the court to evaluate the child’s welfare.

Sean and Lyudmyla Abid divorced in 2010. Their stipulated divorce decree awarded them joint legal and joint physical custody of their one-year old child. In 2015, Sean moved to modify those terms to get primary physical custody.

On at least two separate occasions, Sean placed a recording device in the child’s backpack as the child traveled to Lyudmyla’s home. The child and Lyudmyla were unaware of the device, and neither consented to Sean recording their conversations. Sean then edited the recordings, removed what he claimed to be irrelevant material, and destroyed the originals. Claiming that the recordings demonstrated Lyudmyla’s attempts to manipulate the child, Sean moved to admit them into evidence in the custody proceeding. Lyudmyla objected on grounds that Sean violated NRS 200.650 in recording her and the child’s private conversations.

The district court found that Sean likely violated NRS 200.650 and denied Sean’s motion to admit the recordings into evidence. Nonetheless, the court provided the recordings to a psychologist, Dr. Holland, whom the court had appointed to interview and evaluate the child. The court permitted Dr. Holland to consider the recordings as she formulated her opinions.

At the evidentiary hearing, Dr. Holland testified that Lyudmyla’s behavior was “creating confusion, distress, and divided loyalty” in the child. She based her opinion in part on the recordings, as well as interviews with the child, Sean, and Lyudmyla, email and text communications between Sean and Lyudmyla, and the parties’ pleadings.

After considering Dr. Holland’s testimony and other evidence presented, the district court found that, as a direct result of Lyudmyla’s direct and overt actions, the child is experiencing: confusion; distress; a divided loyalty between his parents; and a decreased desire to spend time with Sean. Consequently, the court determined it was in the child’s best interest that Sean be awarded primary physical custody. Lyudmyla appealed from that order.

Can an expert witness in a child custody proceeding consider evidence obtained in violation of NRS 200.650?

Lyudmyla argued that Dr. Holland cannot consider evidence obtained in violation of NRS 200.650, because NRS 50.285(2) allows experts to consider inadmissible evidence only if the evidence is “of a type reasonably relied upon by experts,” and psychologists do not normally rely upon recordings that are produced illegally.

NRS 200.650 prohibits “intru[sions] upon the privacy of other persons by surreptitiously. . . recording. . . any private conversation engaged in by the other persons unless authorized to do so by one of the persons engaging in the conversation.” Sean did not dispute that he surreptitiously placed a recording device in the child’s backpack without the child’s or Lyudmyla’s consent. Despite finding that Sean violated NRS 200.650 in producing the recordings, the district court provided them to Dr. Holland to consider in forming her opinion.

The Supreme Court of Nevada explained that NRS 50.285(2) allows expert witnesses to consider inadmissible evidence so long as it is “of a type reasonably relied upon by experts in forming opinions or inferences upon the subject.” The Court rejected Lyudmyla’s argument because it shifts NRS 50.285(2)’s focus on the “type” of evidence at issue to the manner in which the evidence was procured. The Court noted that Sean’s evidence – a contemporaneous recording of a parent’s unfiltered interactions with a child – is the type of evidence a psychologist would consider in forming an opinion as to the child’s welfare. See, e.g., In re Marriage of Karonis, 693 N.E.2d 1282, 1286 (Ill. App. Ct. 1998) (“Reviewing the [allegedly illegally acquired] tapes materially advanced the [expert witness]’s ability to determine and defend the child’s best interests here.”). Under NRS 50.285(2), then, Dr. Holland was permitted to consider Sean’s recordings.

The Court explained that NRS 50.285(2) cannot permit what another statute prohibits. But we find no such prohibition in our statutory scheme. While NRS 179.505(1) authorizes a criminal defendant to move to suppress illegal recordings, the Court found no analogous provision in the civil context. Unlike the analogous federal wiretap law, 18 U.S. Code § 2515, NRS 200.650 is silent regarding evidence and admissibility. See NRS 200.690(1) (enforcing NRS 200.650 exclusively with criminal prosecution and civil damages). The Court determined that it would not read a broad suppression rule into NRS 200.650, especially when the Legislature has proven in the criminal context that it knows how to write one. Prohibiting Dr. Holland from considering this evidence would be conflating criminality with inadmissibility, which is left to the sound discretion of the court. See NRS 48.025; NRS 48.035.

The Court further explained that prohibiting Dr. Holland from considering this evidence would do little to effectuate NRS 200.650’s express purpose of protecting an individual’s privacy because, in this context, the expert is already inquiring into private details of the relationship between parent and child. NRS 200.650’s prohibition against disclosing the contents of illegal recordings cannot reasonably be read to prohibit a court-appointed expert from considering such evidence in a child custody case, wherein the “[c]hild’s best interest is paramount.” Bluestein v. Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d 1044, 1048 (2015); see also NRS 125C.0045(2).

The Court noted that its caselaw support Lyudmyla’s position. The Court explained that it has only once addressed the proper remedy in a civil action when a litigant attempts to use illegally acquired evidence to gain a litigation advantage. In Lane v. Allstate Insurance Co., 114 Nev. 1176, 1177, 969 P.2d 938, 939 (1998), Lane illegally recorded phone conversations in violation of NRS 200.620 to obtain evidence to support tort and contract claims against his former employer. The district court sanctioned Lane by dismissing his complaint. On appeal, this court held that dismissal was too extreme a litigation sanction and instead sanctioned Lane by prohibiting him from using the information contained within the recordings in any fashion. In sanctioning Lane, however, the Court did not create a bright line rule that illegally obtained evidence cannot be used in civil proceedings; rather, it held that suppressing Lane’s evidence was an appropriate sanction in that particular case.

The Court noted that a child custody proceeding is readily distinguishable from Lane. Whereas Lane was a civil suit for damages, a child custody proceeding is no “mere adversary proceeding between plaintiff and defendant.” Munson v. Munson, 166 P.2d 268, 271 (Cal. 1946). Here, the interests of a nonlitigant child are at stake. Prohibiting an expert from considering evidence punishes that child by hindering the expert’s inquiry into the child’s best interests. It is sanctioning the child for the alleged crime of his parent.

The Court noted that in affirming the lower court’s decision, it did not condone Sean’s actions. Rather, it had determined that the potential deterrent effect of ignoring Sean’s evidence is outweighed by the State’s “overwhelming interest in promoting and protecting the best interests of its children.” Rogers v. Williams, 633 A.2d 747, 749 (Del. Fam. Ct. 1993). The Court further noted that there are numerous ways to deter parents in Sean’s position without risking harm to an innocent minor. See id. at 748 (rejecting the argument “that by admitting evidence that was obtained illegally, the Court is giving its approval to lawlessness”). Sean could be prosecuted for committing what amounts to a category D felony. See NRS 200.690(1)(a); cf. Bartnicki v. Vopper, 532 U.S. 514, 529 (2001) (“The normal method of deterring unlawful conduct is to impose an appropriate punishment on the person who engages in it.”). NRS 200.690(1)(b) creates a private right of action for Sean’s ex-wife and child to sue for Sean’s intrusion into their privacy. The court can fashion a litigation sanction, such as a fine, that does not affect the child’s interests. See, e.g., Young v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88, 92, 787 P.2d 777, 779 (1990) (holding that courts have “inherent equitable powers” to sanction parties for “litigation abuses”). The Court believed that potential spies in Sean’s position may be deterred by the simple fact that a parent’s lawless invasion into his child’s and ex-wife’s privacy reflects poorly on his parental judgment and may be factored into the court’s decision when determining child custody.

Is there a per se rule that evidence obtained illegally is inadmissible in a child custody proceeding?

A premise of Lyudmyla’s argument is that illegally obtained evidence is inadmissible in a child custody proceeding.

Unless a statute prohibits the admission of relevant evidence, it is presumed admissible. NRS 48.025(1). As the Court analyzed above, NRS 200.650 contains no language to rebut that presumption. The Court believed that a per se rule of inadmissibility would sweep broader than the exclusionary rule in the criminal context, and it would be particularly inappropriate here because a district court “needs to consider as much relevant evidence as possible when deciding child custody.” Rogers, 633 A.2d at 749 (admitting allegedly illegally obtained evidence in a child custody proceeding); accord Munson, 166 P.2d at 271 (“[T]he controlling rights are those of the minor child and of the state in the child’s welfare.”); Lee v. Lee, 967 S.W.2d 82, 85 (Mo. Ct. App. 1998) (“Even evidence obtained fraudulently, wrongfully, or illegally is admissible.”).

The Court explained that the presumption of admissibility dates back to the common law, wherein admissibility was not affected by the illegal means used to acquire evidence. See, e.g., Terrano v. State, 59 Nev. 247, 256, 91 P.2d 67, 70 (1939). While Mapp v. Ohio, 367 U.S. 643 (1961), altered this common law rule by excluding evidence illegally acquired by the government in criminal cases, Mapp’s exclusionary rule does not extend to evidence illegally acquired by a private individual in a civil case. In Sackler v. Sackler, 203 N.E.2d 481, 482 (N.Y. 1964), for example, a husband trespassed into his wife’s home to obtain evidence relevant to a divorce proceeding. The New York Court of Appeals rejected the wife’s argument that Mapp rendered the illegally acquired evidence inadmissible because Mapp’s exclusionary rule was meant to deter governmental intrusions; absent a governmental invasion, suppressing evidence would frustrate courts’ search for truth. Id. at 483 (“[J]udicial rules of evidence were never meant to be used as an indirect method of punishment of trespassers and other lawless intruders.”). Thu, the husband’s illegally  acquired evidence was admissible.

The Court noted that in the related child abuse/neglect context, courts routinely hold that evidence obtained in violation of the Fourth Amendment is admissible because “the substantial social cost of ignoring children’s safety” exceeds “the minimal additional deterrence achieved by applying the exclusionary rule.” In re W.L.P., 202 P.3d 167, 173 (Or. 2009); accord In re Mary S., 230 Cal. Rptr. 726, 728 (Ct. App. 1986) (“[T]he potential harm to children in allowing them to remain in an unhealthy environment outweighs any deterrent effect which would result from suppressing evidence unlawfully seized.”); In re Diane P., 494 N.Y.S.2d 881, 884 (App. Div. 1985) (“[T] he State’s overwhelming interest in protecting and promoting the best interests and safety of minors in a child protective proceeding far outweighs the rule’s deterrent value.”); State ex rel. A.R. v. CR., 982 P.2d 73, 79 (Utah 1999) (“Whatever deterrent effect there might be is far outweighed by the need to provide for the safety and health of children in peril.”).

The Court explained that a per se rule of inadmissibility would force the district court to close its eyes to relevant evidence and possibly place or leave a child in a dangerous living situation. In this instance, the illegally acquired recordings contained no dispositive evidence – they reflected at most one parent’s attempt to alienate the child from the other parent. The Court noted that it was concerned with a scenario in which an illegally obtained recording contains evidence of physical or sexual abuse of a child. The Court believed that categorically excluding such evidence would clearly be against the best interests of the minor and, therefore, in contravention of NRS 125C.0045(2).

The Court determined that because the recordings’ alleged illegality did not render them inadmissible, the court had “broad discretion” in performing its evidentiary gatekeeping function to rule on their admissibility. Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 492, 117 P.3d 219, 226(2005). The Court explained that to the extent that the district court excluded Sean’s recordings based on its belief that the law required exclusion of illegally obtained evidence, that ruling was erroneous. The court noted that the error would be harmless because it did not affect the court’s decision to award Sean primary custody. See NRCP 61.

Conclusion

The Court explained that in a child custody setting, the “[c]hild’s best interest is paramount.” Bluestein, 131 Nev., Adv. Op. 14, 345 P.3d at 1048. The court’s duty to determine the best interests of a nonlitigant child must outweigh the policy interest in deterring illegal conduct between parent litigants. Accordingly, the Court found that the district court did not abuse its discretion in providing the recordings to the expert because reviewing them furthered the expert’s evaluation of the child’s relationship with his parents and aided the district court’s determination as to the child’s best interest.

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