Alan R. Feigenbaum and Brett S. Ward ●
New York Law Journal, March 19, 2026 —
The Court of Appeals’ decision in ‘Matter of M.S.’ marks a significant development in the law governing the authentication of video evidence in Family Court proceedings.
If, as an attorney, your practice in any way shape or form involves hearings, trials, arbitrations, etc. where you are called upon to lay a foundation to authenticate videographic evidence, it is imperative that you read the Court of Appeals’ recent decision in Matter of M.S., 2026 NY Slip Op 00825.
The facts of M.S. are deeply disturbing. The Family Court (Erie County) found that the mother (M.H.) abused her daughter (M.S.) and derivatively abused her son (G.H). This finding was based upon three videos from May, June, and July 2019 that, according to the majority opinion, “appeared to show M.H.’s former live-in boyfriend, D.K., sexually abusing M.S.” “In one of the videos, M.H. can be seen leaving the room a few minutes before D.K. is shown touching and caressing M.S.”
The videos were not discovered in the family home or on any camera or computer belonging to the mother or her boyfriend. In the course of an FBI investigation into persons suspected of trading child pornography, agents executed a search warrant on B.W.
During questioning by FBI agent Martin Baranski, B.W., in an unsworn statement said (according to Agent Baranski) he had been “hack[ing] into security web cameras for the past few years,” had “watched a lot of security camera footage” of the house where M.H. lived, and “hacked” into a video in 2019 showing what he thought was an adult male sexually abusing his 15-year old stepdaughter.
M.H. (the mother) told police that screenshots of two people taken from the videos depicted D.K. and her daughter, M.S.
The majority opinion writes that the daughter, M.S., “denied that she had any sexual contact with D.K.” and claimed she was “conflicted” and “confused” by the allegations and description of the video.
Justice Shirley Troutman’s dissent places particular weight on the Child Advocacy Center (CAC) interview, emphasizing that while the child made no express disclosures, her demeanor and responses were consistent with fear and trauma rather than fabrication.
In the words of Justice Troutman: “Nothing about this interview supported the argument that [the daughter] honestly denied being abused. On the contrary, she presented as an abused child who was afraid to speak honestly.”
On motion by Erie County, the children were removed from their mother, a stay-away order was issued directing D.K. to have no contact with the children, and the children were ultimately placed into a foster home. While the case was pending, M.S. turned 18 and aged out of foster care, and the son (now 16), remains in foster care.
At the hearing, neither the mother nor her boyfriend testified. The mother joined her boyfriend’s objection to admitting the videos obtained from B.W. Erie County tried to lay the foundation for the videos through testimony of Agent Baranski and Gary Mahoney, one of the state police officers who searched the mother’s home. Agent Baranski testified about how he found the videos, and Investigator Mahoney noted that the living room at the house “matched the living room in the video” and noted he observed cameras in the house and “there were sex toys of the kind depicted in the videos.”
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