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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