Can You Record Conversations in a Divorce or Custody Case?

During the course of a representation, often times clients will bring in recordings of their significant other, and request that it be used to prove some issue related to their family law court case. What many clients do not realize is that recording their ex can result in a criminal conviction and the recording is generally inadmissible in court.

California is a two party consent state, concerning recordings. This means that in order to lawfully record another, both the person recording the conversation and the other party recorded must consent to the recording. Under California Penal Code § 632 (a), a person who records confidential communications without consent of all parties can be punished in the form of a fine or even imprisonment up to one year. The statute further states that the recordings are inadmissible in court except as to prove the recording party is guilty of violation of this statute, as per California Penal Code § 632(d)

What constitutes consent to record conversations?

First off, if a party consents to the recording, the communication may be recorded. So how might a person give consent to the recording?

There are two types of consent, express and implied. Express consent occurs when a person verbally communicates consent to the recording. For example, if you start recording another and while recording, the other party states, “I don’t care that you are recording me!”, they are in fact consenting to the recording.

Implied consent is granted not by a party’s express communication, but by the recorded party’s actions in a particular circumstance. An example of this occurs when a person calls your phone and leaves a voicemail. That party is aware the voicemail system will record them and by leaving a message, they are in fact consenting to the recording.

What is confidential communication?

Another aspect of this statute is the “confidential” communication. What qualifies as a confidential communication?  Confidential communications are conversations in which one of the parties has an objectively reasonable expectation that no one is listening in or overhearing the conversation. Case history excludes prosecution on recorded communications made in a public gathering or proceeding that is open to the public. If someone makes a statement in a public place where it is likely to be overheard by others, they lose the expectation of privacy. Therefore, the communication may be recorded without prosecution.

The best advice is to refrain from recording conversations without consent. If you have further questions, contact our office for advice.​