When tensions start to escalate, and it looks like you might be headed towards a divorce or custody case, it’s tempting to want to use whatever methods are available to you to gather the evidence you might need – up to and including recording conversations.
But what’s legal varies pretty dramatically from state to state, so how do you know what you’re allowed to do in Virginia and, then, whether what you’ve obtained is actually admissible in court?
It’s kind of a complicated question, especially if you draw it out to the point where you’re determining the admissibility of the evidence you’ve gotten through your recorded conversations.
Can I record a conversation, whether on the phone or in person, in Virginia?
The law on recording conversations in Virginia is pretty clear: we’re a one party consent state. So, as long as one of you is cool with it (yourself included), it is legal to make a recording. Yes, you can record a phone or in person conversation without telling the other person that you are recording.
I’ve made a recording. Can I get that recording admitted as evidence in my divorce, custody, protective order, or other Virginia hearing?
To actually get your evidence admitted, you may find that it’s a little more difficult. Simply making a recording, and knowing that the recording is legal, is different than being able to get that conversation admitted in a court hearing.
Ultimately, it’s up to the judge to determine whether, and under what conditions, evidence will be admitted in court. You may find that the judge differentiates between recordings created over the telephone and recordings that were created in person.
You may also find that it depends on the purpose for which the recording is being offered. Are you, for example, including a recording where your husband admits that he hits you in order to prove that you’ve been a victim of domestic violence and obtain a protective order? Or are you using it to show that he’s a liar, because he said on the stand that he never hit you? There are two different purposes there, and you can bet that the judge will be fairly discerning.
SHOULD I record my conversation?
Well, that’s a different question entirely! When it comes to whether you should record a conversation, I think the first question I’d ask is why you want to record it in the first place. What are you hoping to gain? Will recording your conversation help you achieve that goal?
It may be that you need to have that conversation with a lawyer, so you can run through all the potential issues, including the advantages and disadvantages of making that recording. It’s hard for me to have that full and complete conversation here, because I can’t tell what you’re planning on recording or what your ultimate goal here is.
I will say, though, that I think you need to consider who else might be harmed by your recording. Are you hoping to, for example, record a visitation exchange in front of your children? Oftentimes, the potential damage of recording the visitation exchange really outweighs the value of whatever information you may get from your recording, even if the judge lets you admit it as evidence in the hearing.
I’ve had cases where visitation exchanges were recorded and where that recording did way more harm than good to the case. No one wants to see a mother recording a damaging conversation with visibly distressed children looking on. It’s probably not going to help your custody case, even if your child’s father behaves as badly as you knew he would.
So, even though it’s perfectly LEGAL to record a conversation with someone who doesn’t know that you’re recording, you may not be able to use it the way you think you should be able to. Depending on what you’re recording, how you’re recording (whether in person or via phone or other electronic means), the purpose for which you’d offer it as evidence, and whatever other harm you could potentially do to anyone who happens to be caught in the crossfire, it may have more or less import in your case.
It’s definitely a good idea to discuss with an attorney beforehand, so that you can make sure that the information you’ve obtained will be the most beneficial to your divorce and/or custody case.
For more information, or to schedule a consultation with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.