Eavesdropping on Your Ex: Recording Telephone Calls

 Can I Record My Telephone Calls With My Ex?

Written by: Stefano Ceroni

More and more frequently I am being asked by my divorce and child custody clients whether or not recording telephone calls with their ex is OK or not.

And, although the answer to this question may seem quite simple to most, there are some issues that every party who is looking to start recording conversations should know before they find themselves in hot water.

Dog-On-The-Phone

First, generally speaking, recording telephone calls in the State of Arizona is not illegal so long as one party to the conversation has given their consent to be recorded.  Meaning, so long as you give your own consent to the recording (which you presumably are when you yourself are the one doing it), then there will be no issues.  This is why Arizona is referred to as a “One-Party Consent State.”

Simple right?

Not so fast.

One-Party vs. Two-Party Consent States

You see, just because Arizona is a One-Party Consent State doesn’t mean that you are in the clear if you live in Arizona.

Why?

Well, what if the party you are recording doesn’t live in Arizona?

That’s right, not all 50 states have One-Party Consent laws when it comes to recorded conversations. In fact, about a dozen States (including the State of California) have Two-Party Consent laws. This means both parties need to be aware of the fact that their conversation is being recorded in order for it to be legal.

So, even if you may live in Arizona, if you are recording your ex while they are residing in a Two-Party Consent State, you could potentially be breaking the law.

Why is this important?

Well, besides the fact that you could be found guilty of committing a crime which could result in monetary fees or even jail time, your recorded conversation will also have a difficult time finding its way into the courtroom because it was obtained illegally.

Recording Telephone Calls Between Your Children and Your Ex

O.k., well, what if you, your ex and your children all currently reside here in Arizona?

Is there anything else that you need to be aware of?

Absolutely!

You see, although there might not be an issue with you recording telephone calls with your ex (because you’re giving your own consent) there is potentially an issue when it comes to recording conversations between your ex and your children.

Why?

Well, let’s think about it.

If you are recording a conversation between your ex and your child, you are not a party to that conversation.  Meaning, your consent to the recording is largely irrelevant.

And, because children who are under the age of 18 do not have legal capacity to consent to the recording, you may find yourself in a situation where you cannot meet Arizona’s One-Party Consent laws, even though your child[ren] are aware of the fact that you are recording them.

Now, I say there could potentially be an issue with you recording telephone calls between your ex and your children because in certain situations, you, as a custodial parent, may be allowed to give your own vicarious consent to the recording on behalf of your child. (Arizona v. Morrison, 203 Ariz. 489 (2002)).

In the case of Arizona v. Morrison, the court admitted as evidence a telephone recording between a 14 year old child and a 35 year old criminal defendant that was recorded by the child’s mother without either party even being aware of the fact that the call was being recorded.  In this case, the Court held that the mother of the child was permitted to give vicarious consent on behalf of her daughter because the mother had a good faith and objectively reasonable basis for believing that it was necessary and in the best interest of the child for her to record the conversation.

It is important to note, however, that Arizona v. Morrison was a criminal case in which the defendant was being charged with sexual abuse, molestation of the child, sexual conduct with a minor, and attempted sexual conduct with a minor.  So, there is no guarantee that a family law Court would rule similarly in a case where the reason for recording the conversation was not as profound as it was in the case of Morrison.

Guidelines For Recording Telephone Calls Between Your Ex and Your Kids

So, what should you do if you want to record conversations between your child[ren] and your ex?

Well, for starters, you should advise your ex at the outset that you are recording the phone call, and you should do this each and every time that you record.  This has the effect of putting your ex on notice of the recording, which could potentially absolve you of any criminal wrongdoing.

(And hey, you never know: your ex’s knowledge of the recording may be enough to solve your problem with the conversations all together.)

To go a step further, you should also ask for your ex’s expressed permission to allow you to record them, as this will eliminate any issues regarding Arizona’s One-Party Consent laws and will in all likelihood allow your recording to be used in court.

(Remember, being on notice of a recording may not be considered by a judge to be the equivalent of consent.)

As a warning, however, all parties should be aware of the fact that their decision to record the phone calls of their children with their ex could potentially backfire.

Why?

Well, some judges may consider your decision to record these calls as being adverse to your child[ren]’s best interest because it places them in the middle of an undesirable situation where they may feel uncomfortable about speaking candidly to their parent. This fact could, in turn, be used against you in court.

So, as a take away, before you start recording any conversations between either you and your ex or your children and your ex, be mindful of the possible repercussions of your actions.  And, speak with a qualified attorney as to whether or not the recordings will actually have any impact on your case, because generally speaking, recorded calls are rarely ever the smoking gun of any domestic relations action.

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