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.

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Nevada Appellate Courts Advance Opinions for December 7, 2017

Nevada Appellate Courts Advance Opinions for December 7, 2017

MULLNER (TROY) VS. STATE

  • Can a court consider felony convictions originating from juvenile offenses in habitual criminal sentencing.

IN RE: PARENTAL RIGHTS AS TO T.L.

  • When does a parent lack standing to challenge a court’s placement decision following the termination of his or her parental rights.

AGWARA VS. STATE BAR OF NEVADA

  • Can an attorney assert his Fifth Amendment right against self-incrimination to quash subpoenas issued by the State Bar that seek production of client accounting records and tax records.

NEVILLE, JR. VS. DIST. CT. (TERRIBLE HERBST, INC.)

  • Does NRS Chapter 608 provide a private right of action for unpaid wages.

ABID VS. ABID (CHILD CUSTODY)

  • Is illegally obtained evidence admissible in a child custody proceeding.

DOE VS. STATE, LEGISLATURE OF THE 77TH SESSION

  • Does Nevada’s medical marijuana registry violate the Due Process, Equal Protection, or Self-Incrimination Clauses of the United States or Nevada Constitutions.

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