In custody and divorce matters, it is common for attorneys to advise clients to keep detailed notes and/or diaries of conversations that may be relevant to their case. These notes and diaries are useful to review prior to a hearing or other court appearance as a way to refresh a client’s memory about the specifics of significant conversations between the client and ex-spouse or ex-partner. Of course, your notes and diary entries may not capture the emotion of the conversations, and it can often be difficult to convey through testimony the disrespectful tone or attitude of indifference expressed by the other party. I have been asked: Would it not be easier to simply record conversations with an ex-spouse or ex-partner, with the intent of introducing the recordings as evidence in custody or divorce litigation? My response: Proceed with caution.
The Pennsylvania Wiretapping and Electronic Surveillance Act (Wiretap Act) creates civil and criminal penalties for anyone who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication[.]” There are also penalties for anyone who “intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication[.]”
In general terms, this means that you place yourself at risk for civil and criminal penalties if you make an audio recording of your ex-spouse or ex-partner (or anyone else) when that person had a reasonable expectation of privacy at the time of your conversation and when that person does not have knowledge and does not consent to the recording. In many circumstances, the recording of cell phone conversations and the recording of conversations in the home will violate the PA Wiretap Act when the audio recordings are done without the other person’s consent. It would also be a violation of the Pennsylvania Wiretap Act to then disclose those recordings to third parties and/or the Court during custody and divorce hearings.
It is important to remember that the presentation of testimony and evidence in custody and divorce matters can be complex. It is also important to be sure that you gather evidence and prepare for litigation in an appropriate manner. If you have questions regarding custody or divorce matters, or if you have questions about the Pennsylvania Wiretap Act, please contact us at 717.299.7342 to speak with one of our attorneys. Our Firm handles both domestic and criminal matters and we have attorneys that handle each area of the law.
~Jeffrey C. Murse, Esquire