“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.

We get calls regularly from people who have gotten themselves into a bind. Usually it’s through no particular fault of their own, and it’s simply a matter of circumstances. Sometimes, though, the clients who call us are doing so because they avoided picking up the phone at an earlier point in time, when trouble could have been avoided, or at least substantially reduced.

We get it – people are reluctant to contact a lawyer when they aren’t really sure they need one, whether it’s a perceived hassle, anticipated costs, or for other reasons. Recently we had a very high wage-earning party in a marriage go through a divorce without ever talking to a lawyer – even to review the final settlement agreement. The client called us a week after the ink was dry, immediately having regrets. At that point it certainly had become much more difficult, though not necessarily impossible, to undo things.

Similarly, we recently had a small business owner call, looking for advice on how to deal with a “silent partner” who hadn’t lived up to his end of the bargain in getting the business – which is starting to become profitable – off the ground. Unfortunately, the terms of their arrangement were never very well settled, and nothing was ever put in writing. They didn’t even really know what matters they needed to discuss when they started the business, because neither of them sat down with a lawyer to know what common issues might arise. Things of course would have been easier if they had taken a little time at the outset to plan for the unforeseeable.

At Hartung Schroeder, we can help. I often tell people, “When in doubt, give us a call.” If there is really no need to involve us, we will give you that advice. Better to be safe than sorry.

ABOUT BRAD SCHROEDER

Brad is a co-founder and partner in the law firm Hartung Schroeder. He believes in advocating for people in many areas of the law. He regularly represents clients in matters pertaining to family law, business law and personal injury. You can learn more about Brad or get in touch with him here.