Order of Protection, Divorce and Surveillance

As a divorce attorney, I am periodically asked if hiring a private investigator to follow a spouse is acceptable and whether, if found out, it would result in any negative repercussions. I usually respond that surveillance is acceptable; however, there may be some evidentiary issues with the results that may make them inadmissible during the trial. A recent decision shed some light on these issues.

In Anonymous v. Anonymous, 2010 N.Y. Slip. Op. 20024 (Sup. Ct. Orange Co. 2010), the husband has brought a motion for summary judgment seeking to dismiss the wife’s petition which alleged the husband violated an order of protection pursuant to a settlement stipulation in Family Court.  The order of protection, entered without any finding of fault against the husband, directed him to refrain from committing a family offense or criminal offense against the wife and to stay at least 1000 feet away from the residence and place of employment of the wife except for court-ordered child visitation or to attend church services on Sundays.  The wife’s violation petition alleged that the husband retained a private investigator who recorded on DVD the wife entering a motel and having an affair with a priest assigned to the Church, where the wife was employed.  The wife alleged that the husband furnished the DVD to her superiors at the Church resulting in the wife being forced to resign.  The wife contended that there was no legitimate purpose in the husband having her followed by a private detective and delivering the DVD to Church officials and that doing so was intended by the husband to cause her to lose her employment and cause her personal humiliation and suffering.  The wife claimed that such conduct constitutes a violation of the order of protection.

In opposition to the husband’s motion to dismiss the petition, the wife’s attorney alleges the husband hired the private detective after he filed his answer and counterclaims in the divorce action.  The wife’s attorney contended the husband was not legally bound to turn over the DVD to Church officials.  The wife’s attorney argued that the husband violated the order of protection by acting through an agent, the private detective he hired, to follow and record the wife’s activities, and then turning over the DVD to the church causing the wife to lose her employment.

The court held that it was not improper for the husband to retain the services of a private investigator since the hiring of a professional licensed private investigator in a matrimonial action to gather evidence is for a proper and legitimate purpose.  The husband had the right to gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims.  Under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order or protection.

With respect to the question of whether delivering the DVD to the Church officials, which was not necessary for the husband to defend or prosecute the divorce action, raised a triable issue of fact that the husband in having the wife followed and recorded by a private investigator intended to inflict emotional and financial harm upon the wife which might constitute a violation of the order of protection.  Although harassment in the second degree often involves conduct which places a person in fear of their physical safety, the language of the statute does not limit itself to only physical threats. If the husband had the wife followed and recorded by a private investigator for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment such might qualify as conduct which alarms or seriously annoys another person, and serves no legitimate purpose, constituting harassment in the second degree.

The husband in his motion papers has prima facie demonstrated his entitlement to summary judgment dismissing the petition by evidence showing he did not retain the private investigator for an improper or illegitimate purpose such as harassment or stalking under the Penal Law or intend to make improper use of the private investigator’s work product DVD.  Upon the failure of the wife to demonstrate the existence of a triable issue of fact that the husband committed a crime or family offense against her or otherwise violated the order of protection, the court granted the motion for summary judgment dismissing the petition.

So, the lesson of this case can be summarized as follows.  One, surveillance in divorce cases is a legitimate means of gathering evidence.  Two, surveillance alone will not amount to a violation of an order of protection.  Three, if results of surveillance are delivered to a third party, with possible negative consequences to the party under surveillance, such act may violate an order of protection, if there was no legitimate reason for such disclosure.  If you are seeking to involve a private investigator to follow and observe your spouse or significant other, I would urge you to consult with a divorce attorney before doing so.

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