J. Gregory Hatcher | Family Law Attorney
In today’s technology age it is easier than ever to record conversations. Often times, litigants in child custody and alimony cases attempt to record conversations they either have with their children or with the opposing party in hopes that the recordings will provide them some benefit in court. In many circumstances, the recordings do provide good evidence for the court as to a party’s statements, demeanor or even potential alienation of the parties’ children. However, you should exercise caution when recording conversations. There is a risk that your spouse may accuse you of setting him/her up to falsely gain an advantage in court.
Most states have laws regarding the manner in which recordings can be made. Further, the United States has federal wire tapping laws that apply. In North Carolina, you may record a conversation in which you are a participant. Further, even if others who are part of the conversation ask if a recording is being made or indicate they do not want to be recorded, it can still take place. The party recording the conversation may continue even if he or she indicates otherwise. The logic behind this rule is that the person making the recording is part of the conversation and should be able to document the statements being made to him and by him.
With rare exceptions, conversations cannot be recorded by someone who is not a part of the conversation. That is, one party cannot record a conversation between two other parties. Even if one of the parties to the conversation is aware that there is a recording but has not disclosed that it is being made, the recording is improper and illegal. The only exception that may be found occurs when a party records a conversation between his or her minor child with another person. Argument can be made that the parent has the custodial power and right to record the conversations of his or her child and later use those recordings as necessary.
Anyone dealing with divorce or child custody issues should always be cognizant of what he or she says because a recording could be taking place at any time. If you don’t want your statements repeated in an open court of law, it would be wise not to make the statement at all. Further, if statements are made that you think have been recorded, this information should be disclosed to your lawyer in advance so there are no surprises in court. A conscientious and thorough attorney will take no chances in these situations and will always request that the opposing party disclose and produce all recordings in his or her possession.
Greg Hatcher is a highly experienced family court attorney in Charlotte, NC. He has been named to the North Carolina Super Lawyers list since 2010 and also recognized among the state’s “Legal Elite” by Business North Carolina magazine. As a Board Certified Specialist in Family Law, Mr. Hatcher has represented clients in child custody and support, divorce, alimony, domestic violence and other family law related cases for more than 17 years.