Tuesday, May 6, 2014

Beware of the Dangers of Recordings in Custody Cases

In 1968, Congress enacted the Wiretap Act of 1968 to prohibit all interceptions (and disclosure) of oral and wire communications, except those specified in the Act and to impose civil and criminal penalties for violations of the Act.  Many states have enacted their own wiretap statutes in response to the Wiretap Act.  The Wiretap Act and its state counterparts provide protections against communications (audio, video, and/or other electronic oral communication) such as secretly recorded telephone conversations.  Recordings obtained in violation of the Wiretap Act are prohibited from use as evidence in legal proceedings.

Parents involved in highly contentious domestic relations matters, and most specifically, custody disputes, often are faced with the dilemma of whether they can and/or should record their spouse and/or children.  This dilemma has been further complicated with the fact that some courts have permitted Guardian Ad Litems to consider illegally obtained wiretap evidence in child custody recommendations to the court, circumventing the protections afforded to citizens in the Wiretap Act.  The new technologies available to individuals, such as FaceTime, Skype, and other virtual visitation aides, greatly expand the ability and opportunity for parents to obtain recordings of the other parent to gain an advantage in child custody litigation.  The admission of this type of evidence directly violates the wiretap statute’s exclusionary rules and allows inadmissible evidence in through the back door by permitting Guardian Ad Litems to consider the illegally obtained evidence in making their recommendations.

It is extremely important for divorce litigants to understand the potential liability for illegally recording their spouse and/or their children.  Even if the domestic relations court permits a guardian ad litem to review and consider the illegally obtained evidence in rendering their recommendation to the court for child custody purposes, the liability for violating the wiretap act can extend in civil court.  Although a domestic relations court permitted the use of recordings obtained by a mother in violation of the Wiretap Act, the father in Illinois sued the mother of his children under state and federal wiretap statutes and the court held the mother liable for violating the Federal Wiretap Act.  Lewton v. Divingnzzo, 772 F. Supp.2d 1046, 1050. 

Learn the lesson from Donald Sterling of the L.A. Clippers. Consult with your domestic relations attorney before you subject yourself to civil liability.    

For more information on this topic, or to schedule an appointment with Joseph Stafford, call 216.241.1074 or visit www.StaffordLawCompany.com

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