Clients often ask whether they are able to legally record their telephone conversations with their estranged spouses. Obtaining recordings of statements from an estranged spouse can often be helpful in a divorce proceeding. In addition to written statements like text messages, emails or postings on social media, recorded telephone conversations and voicemails can be extremely harmful to a litigant’s divorce case as well, or helpful depending on whether you are the litigant who made the statement. As an example of just how significant recorded telephone conversations can be in custody litigation. Just look at the telephone conversations that Mel Gibson’s estranged girlfriend recorded just a few years ago where Mr. Gibson’s messages left the listener wondering whether the Oscar winning actor was actually completely insane. One can only assume that the telephone recordings were quite helpful to Mr. Gibson’s estranged girlfriend in securing a favorable settlement of the custody litigation and other financial issues ancillary to their case.
According to The New Jersey Wiretapping and Electronic Surveillance Control Act N.J.S.A. 2A:156A-3, any person who, “Purposely intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication…. Shall be guilty of a crime of the third degree.” In other words, generally it is illegal to record telephone conversations without the other party’s consent in the State of New Jersey. However, such recording is permitted and legal where the person recording the conversation is not acting on behalf of the state and where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception unless such communication is intercepted or used for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of this State or for the purpose of committing any other injurious act. N.J.S.A. 2A:156A-4d.
In other words, if you are a party to the telephone call, you are permitted to record the telephone conversation even without the other party’s consent. Therefore, during divorce or custody litigation, parties should be wary that his or her estranged spouse may be recording their conversations since such recordings could ultimately be used against him or her in proceeding. Furthermore, even though a parent is not technically a party to a telephone conversation between one parent and a child, that parent may be legally permitted to record a telephone call between his or her former spouse and their child based on the doctrine of “vicarious consent.” Since, “…children lack the legal capacity to consent, courts have held that a parent or guardian may authorize the recording of his or her minor child’s conversations.” D’Onofrio v. D’Onofrio, 344 N.J. Super. 147, 155 (App. Div. 2001). However, the parent recording the call is not always legally permitted to record the calls. To legally record the call, the recording parent must have a “good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations.” Id at 156. In other words, a parent who seeks to record a telephone call between his or her child and a third party must have a good reason for doing so. For example, in D’Onofrio, the father recorded telephone calls between his daughters and their mother after several limitations had already been placed on the children’s mother during the parties’ divorce proceeding due to the mother’s history of depression, suicidal tendencies, and hurtful behavior towards the children. Id at 156-157. The Appellate Division found that the father in D’Onofrio, had a good faith, objectively reasonable basis for believing that it was necessary and in the children’s best interests to record the children’s telephone call with their mother and therefore found that the father did not violate the New Jersey Wiretapping and Electronic Surveillance Control Act. Id. If you are in the midst of a divorce or custody litigation, it could be helpful to record telephone conversations with your estranged spouse or between the children and their parent, but you should speak with your counsel first.
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If you or someone you know has a question about whether he or she is legally permitted to record telephone conversations with his or her former spouse or between their child and a third party, then call the skilled lawyers at Lyons & Associates, at (908) 575-9777 for a consultation today. You can also fill out our online intake form.
Written by: Mark T. Gabriel