ASK ANGIE^TM
By Angela Hallier, Esq.
Answers to your divorce and family law questions

Q I am in the process of a divorce. I have listened on a phone extension in my home to conversations between our five year old son and my soon to be ex-wife. She has been saying things to him I think are inappropriate. Can I legally tape these calls? Can I also tape conversations she and I have? Can I used them in my court case?

A You can be criminally charged under both Arizona and federal law if you intentionally tape record or intercept a wire or electronic communication when (1) you are not a party to the conversation; and (2) neither party to the conversation has consented to the recording. You may also face the same criminal liability if you assist, authorize, or hire someone else to tape record or intercept communications that you are not a party to, if the parties to the conversation have not consented to the recording. However, you can legally tape record your own in-person conversations or telephone conversations with your spouse, your ex-spouse, or child (or anyone else for that matter) when you are a party to the conversation. Such a recording is legal and does not require the other person's knowledge or consent. There are also circumstances when you can legally tape record your children's conversations, even without the child's or the other parent's knowledge or consent. You can do so if you have a good faith and objectively reasonable basis to believe it is necessary and in the child's best interests to record the conversation. Your concern that your wife is making inappropriate statements to the child appears to provide such a basis for tape recording the conversations.

Such recordings may be beneficial and useful as evidence in family law actions where custody or other matters are in dispute if the recording relates to one of those issues; in some cases such recordings may be the only method of obtaining and preserving vital evidence. However, you must also be aware that recording your wife's or your child's conversations without their knowledge may in some instances be viewed by the court as ill-motivated. Understand you likely must disclose the recordings you make to the other party, even if you do not intend to use them at court. Also, even if the recordings are made legally, that does not mean they will automatically be admissible in court as evidence; they must also meet the requirements of the evidentiary rules applicable to your case. Surprisingly perhaps, even illegally obtained recordings may be admissible in court, although their admissibility does not prevent you from being prosecuted for making the illegal recording. As always, check with your own attorney on the advisability of tape recording conversations, and how they can be used to your benefit in your divorce case.

It is always advisable to seek the counsel of a qualified attorney who can advise you specifically about your case. The information in this column is provided for general information only in the state of Arizona, is not specific to any one case and does not create an attorney-client relationship between the author and the reader. ©2003 - 2008 Hallier Law Firm PLC

ASK ANGIE^TM is published monthly in Arizona Trends Magazine.