This is a question that comes up a lot in family law. Sometimes a party wants to record another party making a threat or acting violently. Other times, one spouse wants to secretly record a devastating admission of his or her spouse. This type of evidence can really bolster a case, as long as it’s admissible.
The lead statute on this issue is California Penal Code section 632. This statute holds that anyone who “records [a] confidential communication” “intentionally and without the consent of all parties to the confidential communication,” is guilty of a crime. Accordingly, California is considered a “two-party” consent state. That means that all parties to any confidential communication must agree to the recording. This is different than say, Georgia. In Georgia, anyone can record a phone call without the consent or even the knowledge of any other party to the phone call.
The first question to ask is obvious: “is the communication confidential?” Let’s say, before separation, a spouse admits to doing heroin inside their home and the other spouse records it on their iPhone voice memo app. This is something that would obviously be relevant in a custody dispute. An admission of heroin use under these circumstances would almost certainly be considered a confidential communication as it was made in the privacy of the parties’ home and as it was made between spouses.
Let’s look at another example. The spouses have now separated. In a rage, one of the spouses goes to the other spouse’s home, bangs on the door, and yells obscenities at the other spouse. Since that spouse was outside the home and the parties separated, that would hardly be considered a confidential communication.
Sometimes, it is actually legal to make a recording of confidential communications in California even without the consent of all parties, but the exceptions are rare. For instance, California Penal Code section 633.5 provides that it is not a crime to record a communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, and any felony involving violence against the person…” So as long as the recording is made in pursuit of these types of crimes, it is permissible even if the communication is considered confidential.
I think this is an area of the law that most people should be careful about, especially when considering the criminal implications of being wrong! If you believe you have a recording that might fall into the category of “confidential communications” it is important that you speak with a qualified attorney to understand your rights.
Please contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding child custody and visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.