Q. My ex won’t pay her child support. Whenever we go to court, she claims she has no income, but she has boasted to me before that she is making money under the table and I’ll never get any of it. I bet I can get her to admit it again. Is it legal to record a phone call?
A. Don’t do it! It is illegal to record a phone call, or any private conversation, in California unless both parties know that the conversation is being recorded. You might also be sued for “intrusion.” Even if this doesn’t scare you, the tape would be worthless: it cannot be used as evidence in a court case, except your criminal trial.
Under California Penal Code 632(a), recording or eavesdropping on a confidential conversation without the consent of all parties is a crime. The penalty for a first offense is up to a year in jail or state prison, a $2,500 fine, or both.
Note that this applies to any “confidential communication,” whether it is in person, on the phone, or by some other device, as long as the eavesdropping or recording is done with an “electronic amplifying or recording device.” The term "confidential communication" includes any conversation in which is “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.” California Penal Code 632(c).
Your ex might also be able to sue you for $5,000 or more. California Penal Code 637.2 provides that anyone injured by a violation of the eavesdropping and recording laws can sue for $5,000 or three times actual damages, whichever is greater.
If you do record your conversation, the recording will almost certainly be inadmissible in court. California Penal Code 631(c) states that “Except as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.” In other words, you can’t use it to help you, but it can be used against you to prove you broke the law.
California actually has some of the strongest anti-eavesdropping laws in the US. In many states, it is legal to record a phone conversation as long as one person knows it’s being recorded. In these “one-party states,” people generally may record their own conversations without the consent of any other parties but cannot grant that right to a third party. Reporters have an obvious interest in the laws on this subject, and you can find an overview of all 50 states’ laws on the website of the Reporters Committee for Freedom of the Press.
There might be other ways to prove that your ex is hiding income or spending more than she claims to earn. If you come in to the library, we have books that can give you ideas of the types of records to subpoena and questions to ask to help you do just that.
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