One issue that frequently arises during custody litigation is the secret recording of one parent by the other, or of the other parent's conversations with a child. Sometimes a parent will ask if it's a good idea to record the other parent, but more often the lawyer does not find out about the recording until after the recordings have been made.

The question is then raised, "Can these recordings be used in court?"

Types of Recording

Having established that the recording is secret, recording breaks down first by whether or not the recording is of audio, video, or both:

• Audio-Only Recording: Recording of voices only, whether in person or of a phone conversation or other electronic communication.

• Video-Only Recording: Recordings of video only, as often occurs with security cameras and "nanny cams".

• Audio-Visual Recording: The recording of both video and sound.

The recording of audio and video raise different legal issues, which is why:

• Security cameras very often make video-only recordings so as to avoid accidental violation of eavesdropping laws, and
• Audio-only recordings may potentially be permitted in certain private areas in which the secret recording of video would be inherently problematic, such as in a bedroom or bathroom.

Recording next breaks down by whether or not the recorded activity or conversation occurred in public or in private:

• Recording Public Activity: Recording activity that is occurring in a public place.

• Recording Private Activity: Recording activity that occurs in a private context.

Recording in Public

When people engage in public activity or public conversation that is loud enough for others to casually overhear, they have little and perhaps no expectation of privacy in their actions and conversations, reducing the legal concerns associated with recording without consent.

The more private the location, the greater the expectation of privacy and the greater the legal issues that are potentially raised by surreptitious recording.

Phone Messages and Voice Mail

When somebody reaches an answering machine or voice mailbox and leaves a message, there is no issue of privacy. The person knows that the message is being recorded.

If relevant to the issues before the court, the message can later be used without controversy in legal proceedings.

Reasons to Record the Other Parent

The parent who chooses to secretly record the other parent often believes that the recordings will provide a treasure trove of examples of the other parent's use of inappropriate language or behavior, misconduct, or other parenting issues, that a court will see as significant if not overwhelming proof that the recorded parent should not receive custody.

Despite that hope, recordings rarely turn out to have an impact on a case that is significantly greater than that which may be achieved through testimony based upon a parents' recollection.

Most of the case law that discusses secret recordings in custody cases does not involve their relevance to the court's custody determination, but instead involves discussion of whether the recording was conducted illegally, and whether the secretly recorded parent can sue the other parent over the recordings.

Within the context of cases in which recordings have at times proved particularly useful,

• Sometimes a relationship breaks down over suspicions of child abuse, but due to the circumstances of the claim or the age of the children there's no clear evidence of abuse. Although mostly outside of the context of child custody litigation, there have been some high profile cases in which the abuse of children was caught on video through the use of a nanny cam, and even through cameras placed in a child's hospital room.

• Within the context of family law, there have been a number of cases in which an incident of domestic violence or serious misbehavior during the exchange of children was recorded, or in which aggressive actions that seem to have been stopped only when the other person realized that a recording was being made.

Reasons Not to Record the Other Parent

The reasons not to secretly record the other parent are usually significant:

• It May Be Illegal: In all states, it is unlawful to record a private conversation unless you're a party to that conversation, and it is broadly unlawful to secretly videotape people in locations where they have a reasonable expectation of privacy, such as when they're using a bathroom. In some states,¹ it is illegal to record a private conversation unless all parties to the conversation agree to be recorded. The act of secretly recording your conversations with your ex-, or your child's conversations, may be a crime in your state.

• It Often Looks Manipulative: Even if legal, the judge is almost certain to recognize that people who secretly record others will be on their best behavior, often starting the recording only after engaging in statements or actions that will provoke the recorded person, or while goading the recorded person in ways that may not be immediately apparent.

• You Can't Hold Back Evidence: If the other parent is represented, you can anticipate that you will be served with discovery that asks about recordings, and demands that copies of any recordings be turned over to the other parent's lawyer.

• Custody Evaluations: In many high-conflict custody cases, the parents go through a custody evaluation process. If the parent admits to recording conversations during that process, the professional performing the evaluation will opine as to why the recordings were made and is likely to specifically discuss the question of manipulative recording. If the recordings are not disclosed, a later disclosure and attempt to use the recordings casts a shadow over the recording parent's honesty and candor during both the evaluation and during court proceedings.

Recording Conversations Between the Other Parent and Your Child

Some parents are tempted to record conversations between their child and the other parent, to document inappropriate statements or conduct by the other parent.

Some jurisdictions regard a parent as having vicarious consent to the recording of a conversation with a minor child, such that a parent can record their own child's conversations. However, that does not hold true in all one-party consent states, and is not the case in any two-party consent cases.

Further, although one federal circuit² held that vicarious consent exists under the federal wiretapping law, should a prosecution be brought in other parts of the country, other federal courts may disagree.

Using Secret Recordings in Court

In most custody cases that involve the recording of the other parent, even if made lawfully, the tapes end up not being used in court. In addition to the previously mentioned issue, that the court may view the recording parent as manipulative, other factors include:

• It is expensive to have your lawyer review all of your tape recordings to advise you about what portions may be useful in court, and how the other party may respond to the excerpts or use other excerpts in court to undermine your positions or otherwise impeach your testimony.

• Upon recognizing that all recordings must be provided to the other parent if demanded during discovery, some parents decide that it's not likely to be helpful to try to convince the court that a few seconds, here and there, taken from dozens or hundreds of recordings are representative.

• If a parent claims only to have made a small number of recordings, that just happen to contain the juiciest exchanges with the other parent, a court is likely to believe that other recordings were made and that the parent offering the recordings is withholding other recordings.

• When a recording starts part-way into an exchange, questions may be raised about what happened before the recording was started.

• When presenting recordings in court, it is helpful to offer a transcript to help the court follow along, but transcript preparation is time-consuming and, if you don't prepare transcripts yourself, expensive.

• The content of recordings is not always clear, and disagreement over what word or words were used can result in extensive (and expensive) courtroom argument.

• The use of recordings raises potential issues of whether the recordings were edited, with the potential for having to pay for expert analysis and testimony pertaining to the possibility of alteration.

Introducing a recorded conversation in court is not as simple as pulling out a tape recorder, queued up to a key point in a recorded exchange, and pressing play. Even if you assume that the other parent's lawyer will neglect to request recordings, that the case will go to trial, and that the other parent will testify to something that may be contradicted by the recording,

• The other party may object to the use of the recording, and is likely to demand the opportunity to review the entire recording for context.
• There may be disputes over the clarity of the recording and what words were actually used.
• There are likely to be accusations that the other parent was previously provoked or was somehow set up.
• If recordings were requested by the other party but not turned over, there could be considerable argument over the failure to provide recordings as a discovery violation and what sanctions might be appropriate.

Consult a Lawyer Before Recording

Due to the legal concerns that may be raised by the secret recording of others, it makes sense to talk to your lawyer about recording before you begin any practice of recording the other parent. Your lawyer can explain the laws of your state, whether or not it would benefit you from making a recording, and where and when it would be permissible for you to make a recording.

Is Open Recording a Better Idea

As an alternative to secretly recording somebody, you have the option of openly recording them. When you tell your ex- that you intend to record a conversation, they may end a conversation or withdraw from the situation.

Keep in mind that some people respond angrily to the production of a recording device. If the other parent has a history of abusive behavior, it is important to consider whether an attempt to openly record the other parent may result in explosive or violent behavior, including an attempt to take away the recording device.

If both parents know that a recording device is present, even if in the form of a security camera in a public location as opposed to a camera operated by or on behalf of a parent, both parents are likely to comport themselves better during the recorded exchange.  If an openly made recording captures what appears to be dangerous aggression or an act of domestic violence, the recording may be a powerful tool to achieve pretrial settlement of a case.

Assume You're Being Secretly Recorded

If you're in a custody dispute, you should assume that your ex- may be secretly recording you. If you behave as if you're being recorded you will have two advantages going into court:

• If recordings do exist, all they will show is that you treated the other parent with respect and courtesy, and were compliant with the court's order.

• Even if no recordings exist, you'll have displayed a pattern of behavior that will make you look more responsible to the court than might otherwise have been the case.

Footnotes

1. The states in which all parties to a private conversation must consent before recording becomes legal are known as two-party consent states. Those states are California, Connecticut, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Pennsylvania and Washington.

2. See Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998). The federal Sixth Circuit includes Kentucky, Michigan, Ohio and Tennessee. The reasoning of the Pollock court was adopted by a Utah federal trial court, Thompson v. Dulaney, 838 F. Supp. 1535 (D. Utah 1993), but does not appear to have yet been adopted by any other federal appellate circuit.