Malinowski v. Matin

Malinowski sought to add the parties’ minor children onto her existing DVRO. As part of her evidence, Malinowski had footage from a dash cam of the custody exchanges. The trial court excluded this evidence, finding that it recorded Martin’s confidential communication with the children in violation of the Penal Code section 632, the Privacy Act, because Martin had a reasonable expectation of not being recorded or heard at the supervised exchanges.  “The Privacy Acts bars the recording of ‘confidential communication’ without the consent of all parties to the communication.”  The trial court also denied Malinowski’s request to add the minor children to the DVRO. Malinowski appealed.

In the published portion of the opinion, the appellate court found that communications made during court-ordered supervised custodial exchanges were not confidential communications under the Privacy Act. Because the supervisor’s role was to monitor and document statements made during the exchange, Martin could not reasonably expect that his comments made during the exchange were confidential. Moreover, because the exchanges occurred in a public place -and often caused bystanders to look because of the commotion caused during the exchange – parties would reasonably expect that their conversations were being overheard or recorded. The trial court, thus, erred in excluding the video footage.

Notably, the appellate court did not find that the dash cam recordings fell under the domestic violence exceptions to the Privacy Act. Because the DVRO did not prohibit Martin from having contact with the children, the DVRO did not give Malinowski permission to record Martin’s “confidential communications” with the children. Moreover, Malinowski showed no facts from the period of time that she started recording the exchanges that showed a “good faith, objectively reasonable belief that recoding the exchanges would be in the best interest of the children.”