The case of Anonymous vs. Anonymous (so captioned by the court to protect the identities of all involved) recently asked and answered this question. This case involved a wife who filed for divorce in November 2008. The husband filed a counterclaim, alleging that the wife was having an affair. In February 2009, the court entered a protective order requiring the husband to keep 1000 feet away from the wife’s residence and place of employment (excepting visitation and church attendance). In August 2009, the husband hired a private detective to spy on his wife. The detective followed her to a hotel where the detective recorded proof that the wife was having an affair with their priest. The matter became a little more public when the husband told another priest during a confessional of the affair, causing the church to launch an investigation (during which the DVD was given to church officials). While the wife did not contest the affair, she asserted she was being harassed and that her husband had violated the protective order by hiring the detective.
Family Court Judge Debra J. Kiedaisch ruled that “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 of protection.” She said that 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.”
“If the husband had the wife followed and recorded … for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment,” that might rise to “conduct which alarms or seriously annoys another person, and serves no legitimate purpose” — second-degree harassment under New York law — Kiedaisch wrote.