Use of confidential recordings at a DVTRO trial

Implications of Malinowski v. Martin (2024) 104 Cal.App.5th 559 on Family Law DVRO Matters and the Use of Recordings at Trial

In the recent California Court of Appeal case, Malinowski v. Martin (2024) 104 Cal.App.5th 559, the court provided critical guidance on the admissibility of recorded evidence in domestic violence restraining order (DVRO) matters. This decision has significant implications for family law practitioners, particularly those handling cases involving allegations of abuse during supervised visitations.

Case Background

Kamila Malinowski and Justin Martin were involved in contentious post-divorce proceedings, including disputes over custody and allegations of abuse. Malinowski sought to modify an existing DVRO to include her children as protected parties, arguing that Martin engaged in abusive behavior during supervised visitation exchanges.

To support her claims, Malinowski introduced video recordings from her vehicle’s dash cam, which captured interactions during the supervised visits. The trial court, however, excluded the recordings, reasoning that they violated California’s Invasion of Privacy Act (Penal Code § 632), which prohibits recording confidential communications without consent. Due to the exclusion of this evidence, the trial court denied Malinowski’s request to modify the DVRO.

The Court of Appeal’s Analysis

On appeal, the court focused on whether the recorded conversations constituted “confidential communications” under the Privacy Act. The Act defines a communication as confidential if at least one party has a reasonable expectation that it will remain private.

The appellate court held that conversations occurring during court-ordered supervised visitations do not meet the standard for confidentiality. The presence of a supervisor negates any reasonable expectation of privacy, as these visits are specifically designed to be monitored. Therefore, the exclusion of the dash cam recordings was improper, and the appellate court reversed the trial court’s ruling.

Key Implications for Family Law Practitioners

This ruling provides important clarification for attorneys handling DVRO matters, particularly regarding the use of recorded evidence in proving abuse or violations of court orders. Key takeaways include:

1. Admissibility of Recordings in Supervised Visitations: The ruling confirms that recordings made during supervised visits may be admissible, as the monitored nature of these interactions negates a reasonable expectation of privacy.
2. Strategic Use of Evidence in DVRO Cases: Family law practitioners can now more confidently utilize recorded interactions to substantiate allegations of abuse, harassment, or coercive control in restraining order proceedings.
3. Guidance on Compliance with the Privacy Act: While the ruling favors admissibility in supervised settings, attorneys should still advise clients to be cautious when recording conversations in other contexts to avoid potential privacy law violations.
4. Impact on Custody and DVRO Modifications: This decision strengthens the ability of parents seeking to modify a DVRO by allowing them to present recorded evidence demonstrating ongoing abuse or harmful behavior.

Practical Considerations for Family Law Attorneys

Given this precedent, attorneys representing DVRO petitioners should consider the following strategies:

• Gathering Admissible Evidence: Encourage clients to document concerning interactions within legally permissible parameters, particularly in supervised settings.
• Pre-Trial Motions: Be prepared to argue the admissibility of recordings in line with Malinowski v. Martin when facing objections based on privacy concerns.
• Educating Clients on Privacy Laws: Ensure clients understand the limitations of recording conversations and the distinction between supervised versus private settings.

Conclusion & Call to Action

The Malinowski v. Martin decision marks an important development in the intersection of privacy law and family law litigation. It provides clarity on when recorded evidence is permissible, offering a valuable tool for victims of domestic violence seeking protection through the courts.

At Edgar & Dow, we are committed to advocating for our clients and utilizing every legal tool available to protect victims of domestic violence. If you are facing a DVRO matter and need experienced legal counsel, contact us today. Our team is ready to help you navigate your case with skill and dedication.

Call us at (951) 684-6885 or visit www.edgarfamilylaw.com to schedule a consultation.