We’ve all experienced voicemail and used our phones to capture memories with friends and family. It’s become second nature. However, when it comes to using these recordings in a family law case, things get more complicated.
California law places strict rules on recording conversations. If you want to record someone, you must let them know first. This is to protect people’s privacy. If you don’t follow this rule and try to use the recording in court, it might not be allowed as evidence.
Protect Your Privacy: California’s Recording Laws
California has very old laws about privacy, going as far back as 1872. These laws were updated to fit our modern world, once in 1988, and again in 2016 with the rise of smartphones. The biggest change was to laws about recording conversations. In particular, the Legislature modernized the wiretapping statute (Penal Code Section 631) and the eavesdropping and audio-recording statute (Penal Code Section 632).
While it’s not common to secretly listen in on phone calls (wiretapping) anymore, it’s very easy to record someone with a smartphone. You can secretly record someone’s voice or even make a video of them without their knowledge. It’s also possible to put someone on speakerphone without them knowing and have other people listen in.
If you illegally record someone, the recording can’t be used in court.
California law says that any recording made without someone’s permission is illegal. This means the recording can’t be used as evidence in any kind of legal case, including a divorce or custody battle. Plus, the person who made the recording could face criminal charges. There are also civil laws that let the person who was recorded sue for damages.
Not only is such evidence inadmissible, the author(s) and co-conspirator(s) in the gathering such evidence can be charged with a misdemeanor crime under the statute. So, the stakes can be high.
Under Penal Code Section 637.2, there is also a civil tort for damages against a violator of the statute held by the victim whose privacy was illegally incurred-upon.
Eavesdropping and Recording
Penal Code Section 632(a) states that it is illegal to use an electronic device, such as phones, to intentionally record or listen to a private conversation without the consent of everyone involved.
Penal Code Section 632(b) states that it is illegal for businesses and organizations, not just individuals, to illegally record someone.
Penal Code Section 632(c) states that a “private conversation” is one where people think their talk is just between them. This does not include things like public speeches, court hearings, or any place where people might expect to hear them.
There are some court cases that test the limits of this law. These cases help clarify what is and isn’t allowed. For example, courts have looked at:
- Debt collectors and how they can contact people (Kuschner v. Nationwide Credit)
- Whether conversations with police are protected (People v. Chandler)
- When recordings made by law enforcement can be used in court (People v. Guzman)
The law is still being developed. These are just a few examples, and there will likely be more court cases in the future that will further define the reach of California Penal Code Section 632.
Application in Family Law Proceedings
In the realm of family law, the implications of these recording laws are significant. Disputes over child custody, spousal support, and property division often become highly contentious. In the heat of these battles, the temptation to gather evidence, such as secret recordings, can be strong. However, as outlined above, such actions can have severe legal consequences.
Common scenarios where recording issues arise in family law include:
- Secret recordings of conversations between spouses or partners: This is a common issue, particularly when there are allegations of abuse, infidelity, or financial misconduct. While it may seem like a valuable piece of evidence, if the recording was made without the other person’s knowledge, it is likely inadmissible in court.
- Recording of child-custody exchanges or interactions: Parents may be tempted to record interactions with their children to document the other parent’s behavior. However, these recordings are often subject to the same legal restrictions.
- Use of speakerphone to involve third parties in conversations: Involving others in a conversation without the knowledge of all parties involved can be a violation of privacy laws.
If you are considering recording someone in the context of a family law matter, it is essential to consult with an attorney. They can advise you on the specific legal risks and help you explore alternative methods of gathering evidence. Remember, the safest approach is to avoid secret recordings altogether.
It’s crucial to understand that even if a recording is technically admissible, its use in court can be limited. Factors such as the quality of the recording, the relevance of the content, and the potential for prejudice can influence a judge’s decision to allow or exclude the evidence.
Don’t Let Secret Recordings Hurt Your Family Law Case
California’s recording laws are strict, and using an illegal recording in court can backfire. If you’re facing a family law issue and considering recording someone, don’t navigate this legal minefield alone.
The Law Offices of Alexandra R. McIntosh can help you understand your rights and explore legal options for gathering evidence that will hold up in court.
Visit us online or call (760) 753-5357 for a consultation to discuss your specific situation.
We understand the complexities of family law, and we’re dedicated to protecting your rights and achieving the best possible outcome for you and your family.
