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RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 12132
Experience:  Experienced in multiple areas of the law.
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We are in the process of divorce. We didn't determine

Customer Question

We are in the process of divorce. We didn't determine child custody yet. My ex comes to visit our son on some nights and lately he said that he is interested in pursuing 60/40 or 70/30 custody, where he wants 60%-70%. Tonight he was planning to take our child to his girlfriend place. Our child has sleeping issues and it took him a while to fall in sleep during his day nap- a few hours. He usually sleeps for 3 hours. My ex showed up 1 hour after our child fell in sleep and said he wants to take him out. He came to his room, turned the lights on and started talking very loudly. Our child woke up and start crying. I tried to prevent ex from waking our child up but he yelled at me, threatened me that I won't get any child custody because he will get an expensive lawyer.
I didn't want to give him our child backpack with his stuff because i wanted our child to sleep longer, and ex was following me, demanding child's backpack and recording everything.
Also our child had a cold and was prescribed to take medicine. We have to give it at certain time and certain dose but my ex was overdosing him- gave it to him 3 times instead of 2 and gave it at random times. I specifically told him at what times he needs to give medicine to our child but he said he doesn't have to follow my directions.
Is it considered child abuse when he is waking up our child and doesn't let him sleep enough? Is it child abuse when my ex doesn't follow dr's recommendations?
Is it legal for ex to record most of our conversations? It makes me very uncomfortable. Thank you.
Submitted: 11 months ago.
Category: Family Law
Expert:  RobertJDFL replied 11 months ago.

Thank you for using Just Answer. I look forward to assisting you.

California Penal Code 273d PC punishes the act of physically injuring or imposing cruel physical punishment on a child...more commonly referred to as child abuse. Examples would include slapping a child so hard as to leave a mark or bruises, or beating a child to discipline them. Therefore, waking them up from a nap early doesn't rise to the legal definition of abuse, nor does giving them the wrong dose of medicine, though that could be child neglect if your son were to suffer injury from his failure to follow proper instructions regarding dosing.

The crime of California child endangerment occurs when someone:

  • Causes or permits a child to suffer unjustifiable physical pain or mental suffering,
  • Willfully causes or permits a child in their care to be injured, or
  • Willfully causes or permits a child to be placed in a dangerous situation.

With respect to recording, California is known as a “two-party” state, which means that recordings are not allowed unless all parties to the conversation consent to the recording.

Under Penal Code § 632(c), “confidential communication” includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded. In other words, a recording in your home requires your consent because there is an expectation of privacy when it's just the two of you. A recording at a restaurant, where there are a lot of people around, and no expectation of privacy, does NOT require consent to record.

Your ex should not be recording you without your consent and is actually breaking the law in doing so by recording you in private if you have expressed to him not to do so. If he continues to do so, you may wish to consider filing a police report.

Customer: replied 11 months ago.
Thank you so much for your answer. I was reading about penalty for this violation and it looks like it could be a penalty for $2500 or incarceration for 1 yr.
My ex recorded me 2-3 times against my will in the past few months. If I file a police report, what are the chances of him getting arrested? Is it most likely that he will get a warning? Do I have to prove that he recorded me? Thank you.
Expert:  RobertJDFL replied 11 months ago.

Thank you for your reply. Sorry for the delay in responding, as I was not online earlier.

There are different burdens of proof for the police to make an arrest and for a prosecutor to be able to obtain a conviction. In order to make an arrest, police need "probable cause", a reasonable belief (in their opinion) that a crime took place. A prosecutor, however, would need to prove guilt beyond a reasonable doubt, which is a very high burden of proof, in order for him to be convicted of a crime. This is why sometimes, a person may be arrested, but a prosecutor will then dismiss the case.

Without proof, I think it's unlikely that he would be arrested, much less prosecuted for this. Proof can come in many different forms. Has anyone heard him tell you that he has recorded you? What about an email where you tell him that you insist he stop recording you and he replies and admits in his response to recording you (e.g. "I'm not going to stop recording you and you can't make me"). You could even record him in a public place, where there is no expectation of privacy - like at a diner, or a mall, etc. where you discuss that he needs to stop recording you.

If you can't get any type of evidence, the police may be willing to contact him and speak to him as a warning (since I think you telling him that he's breaking the law will likely be ineffective), but I can't say that for certain -that really would be up to the individual police department and what they would do for you.

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