Is it EVER legal to record a one on one conversation in CA without the other person’s consent?

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Is it EVER legal to record a one on one conversation in CA without the other person’s consent?

If you are outside can they record the conversation? At a restuarant? etc…I think my ex-husband is recording our conversations during the child’s drop off and pick up? They are not violent or physical conversations, but they do get tense at times. I have told him I am going for full cusotdy etc…Can he use it in court, is that considered a threat?

Asked on June 1, 2009 under Criminal Law, California

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

Generally, California requires both parties to a conversation to consent to its being recorded as long as the party not recording has a reasonable expectation that the conversation is strictly between the parties; for example that it can't be overheard.

If your husband does his recording in public places this may be how he will justify it.  And by your own admission they get "tense".  This could well mean loud.

This is a very difficult area of the law because it can get very technical.  Just to show you how much, I've given a link to an article on this very subject:

http://www.bna.com/bnabooks/ababna/tech/2004/dexter-stewart.pdf

As you can see its very complicated.  Your best bet is to speak directly to your attorney about this.  Just remember, if you think he is recording you than he probably is.  Since you don't know for sure proceed as though all of your conversations are being taken down.

B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

I'm not a California attorney, but as far as I know, there is no law that prevents a person from recording his own in-person conversations, without letting the other person know.  Wiretapping statutes are all about intercepting electronic communications.  You should check with an attorney in your area, and you might well want to have counsel representing you if you are going into a contested custody hearing.  One place to find qualified lawyers is our website, http://attorneypages.com

Telling your ex-husband that you are going to court for full custody, or that you will do that if he doesn't stop something that's upsetting you, is probably not the sort of "threat" that will hurt you.  Going to court is the right way to settle disagreements in this country, and no judge is likely to have a problem with that, in most settings. It only becomes a problem when you use the courts improperly, without good cause, for the sole real purpose of making someone's life miserable.


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