Recordings of spouses engaging in bad behavior and/or incidents questioning parental fitness can be valuable evidence in a divorce or custody proceeding. Is it legal to record your spouse or your child’s communications and are the recordings admissible evidence in a divorce or custody proceeding? The answer is dependent upon the circumstances surrounding the recording and the type of proceeding.
Virginia’s Wiretapping statute (Virginia Code §19.2-62) makes it a Class 6 felony to intentionally intercept any wire, electronic, or oral communication; use an electronic, mechanical or other device to intercept oral communications; intentionally disclose to any other person the contents of communication knowing that the information was obtained through the interception of a communication; or intentionally use the contents of the communication, knowing that the information was obtained through the interception of a communication. However, if the person intercepting the communication is a party to the communication or one of the parties to the communication has given prior consent to the interception, then the interception of the communication or the use or disclosure of such communication does not violate the statute.
If a person records their spouse in such a manner as to violate this provision, then Virginia Code §19.2-65 prohibits that communication from being admitted as evidence at trial. Moreover, no evidence derived from that communication may be received in evidence at any hearing.
Virginia Code §8.01-420.2 places an additional limitation on the admissibility of recorded conversations as evidence in divorce cases. That statute provides that no mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded or (ii) the portion of the recording to be admitted contains admissions that, if true, would constitute criminal conduct which is the basis for the civil action and one of the parties was aware of the recording and the proceeding is not one for divorce, separate maintenance or annulment of a marriage.
Thus, if you are a party to the communication, and it is not a recorded telephone conversation, then the recording is not a violation of the wire-tapping statutes and can be used as evidence in your divorce or custody proceeding. If you record a telephone conversation, you must state at the beginning of the recording that it is being recorded. Even with that declaration, a recorded telephone conversation cannot be used as evidence in your divorce proceeding.
What if you have concerns about your spouse’s parenting ability, suspect abuse of the children, or have other concerns about his or her treatment of the children? Can you record the children’s conversations with the other parent?
This is a more difficult question. The doctrine of vicarious consent, which provides that a parent may intercept his or her child’s communications on the child’s behalf, without the consent of the other parent, has been created by judicial decision as an exception to the wiretapping statutes in those states that require one party consent to intercept communications. In those states adopting the vicarious consent doctrine, the Court requires that the parent recording the communication do so under an objective, good faith belief that they are acting for the benefit of the child. There is no reported Virginia case adopting the vicarious consent doctrine as of this writing. Thus, whether such recording is legal, and therefore admissible in your proceeding will be determined by the Judge hearing your case. In at least one such case, a Judge held that parents provide consent for their children for a multitude of things, and therefore could provide vicarious consent to record the child’s interactions with other family members, unbeknownst to the other family members. Certainly, under Virginia Code §8.01-420.2, the recording of your child’s telephone conversation with the other parent will be inadmissible unless it contains the declaration that it is being recorded. Even with the declaration, the recording will not be admissible in your divorce case, but may be admissible in your custody case.
Prior to recording your spouse or your child, please seek the advice of experienced counsel to help you navigate the pros and cons of recording and to ensure that you are not violating the law by making such recordings.