By : Laura Lockwood
“Can I record my ex in my family law case?” This is a common question that arises as we guide our clients through a divorce or child custody action. People often don’t consider whether the can legally obtain those recordings or whether the recordings are even admissible in their court proceedings. It important for clients to understand what role, if any, audio or visual recordings can play in their case – before they decide to record.
In the State of Iowa, specific laws exist prohibiting “illegal wiretapping”. See Iowa Code Section 808B.8. In general, recording a conversation in Iowa is permitted only if one party (which could be the recording party) consents to the recording. While it is illegal to record communications that did not involve you; it is perfectly legal to record your own phone calls, video calls, or in-person conversations with another person. However, if you are not a party to a conversation, the conversation is considered a “private” and protected communication. If you attempt to use this protected communication, you could be subject to criminal and civil liability.
Hartung Schroeder has successfully navigated this very issue for a recent client. See Papillon v. Jones, 892 N.W.2d 763 (Iowa 2017). Our client was involved in a bitter child custody dispute with her ex-boyfriend, Jones, who was also the father of her two children. Jones placed a recording device in our client’s home, and secretly recorded conversations between our client, her friends, her mother, and her attorney – all without our client’s knowledge. Jones then used the recordings in consultations with a custody evaluator and intended to use them at a child custody hearing. Before the resolution of the child custody issues – which were resolved in favor of our client – we pursued a lawsuit on her behalf against Jones seeking damages for illegally recording her conversations. The court heard the case and returned a verdict in favor of our client for actual damages, attorneys’ fees, and punitive damages. With this first-hand experience representing a victim of “illegal wiretapping”, we attorneys at Hartung Schroeder are uniquely experienced at advising our clients about the use of recordings in child custody and divorce cases. If the question is about a phone call that occurred between parties who are in different states, this scenario would call for the intersection of federal law and the law of multiple states. Hartung Schroeder can guide you through the unique facts and law pertaining to your specific case.
Just because a client is able to obtain a legal recording that is relevant to their case, it does not necessarily mean the recording will be useful. Many clients believe that if they “catch” their spouse or ex by recording them, or if they record their children telling them something favorable, it will be their trump card. However, your “legal” recording may not be admissible in the court of law. Likewise, if it is admissible, it may not be viewed favorably by the judge. There are many judges who would look negatively upon a client who records another, legally or not. In many instances, the Court may focus less on the recorded conversation and more on the act of recording. Custody cases often hinge on the parents’ ability to effectively communicate with one another. If you record the other party or a child without their consent, a judge may question whether you are capable of coparenting. Bottom line: Every circumstance is unique, and it is important to be very mindful of the consequences of recordings and how they could affect your legal matter.
Please note: This is not legal advice about your specific case. Because of the fluid nature of divorce and custody cases, it is always best to consult with an Iowa lawyer about your specific facts and about any applicable wiretapping laws.
ABOUT LAURA LOCKWOOD
Laura Lockwood is a collaborative attorney and mediator, practicing primarily in the area of family law. Having received extensive training in the collaborative and mediation processes, Laura believes strongly that peacemaking is an invaluable skill — particularly in family law. You can read more about Laura or get in touch with her here.