Recording Conversations in California Family Law- What’s Legal, What’s Not

Have you ever considered recording a conversation with co-parent, ex or a third party that you believe may be helpful to your California family law case? Before you press “record,” it is critical to understand California’s strict recording laws and how they apply in family court.

California’s Golden Rule: All-Party Consent
California is an all-party consent state. This means a confidential conversation may not be legally recorded unless every participant consents. This requirement arises under the California Invasion of Privacy Act.

Under California Penal Code section 632, recordings of confidential communications made without consent are generally inadmissible in family court and may expose the person who made the recording to criminal and civil liability.

There are limited exceptions, however. In situations involving domestic violence, child abuse, or serious parental misconduct, a recording may be considered if it was made with a reasonable belief that it contains evidence necessary to seek a restraining order or to demonstrate a significant risk to a child. Even then, courts carefully weigh the probative value of the recording against potential prejudice.

What Counts as a Confidential Conversation
A conversation is confidential when the people involved reasonably expect privacy. This may include conversations in a home, a private office, or even a quiet corner of a coffee shop. Recording these conversations without consent can violate the law.

Public vs. Private: Does Location Matter
If the parties are in a public setting such as a busy park or a restaurant where others are present and could reasonably overhear the conversation, the discussion is typically not considered confidential. In those circumstances, recording is generally permitted. Caution: If the speakers are attempting to keep the conversation private, it may be illegal to record.

Exceptions in Domestic Violence and Child Safety Cases
California law allows victims to request court permission to record communications from an alleged abuser. When filing a motion for a domestic violence protective order, it is usually recommended to request permission to record conversations. In limited circumstances, recording may also be permitted without a court order if you reasonably believe the conversation will provide evidence necessary to support a restraining order.

A parent may be permitted to record a child’s conversation with another person if the parent genuinely believes the child is in danger and the recording is made in the child’s best interest for the purpose of gathering evidence of abuse. Courts scrutinize this exception carefully.

The Bottom Line
Do not record private conversations in California without everyone’s consent, especially in family law matters, unless you are certain an exception applies. The law is strict, and the consequences can be serious.

If you are dealing with domestic violence or child abuse, seek immediate assistance from law enforcement. If you believe recording is necessary for your safety or your child’s protection, consult an attorney or seek guidance from the court.

This document is for general informational purposes only and does not constitute legal advice. For advice regarding your specific situation, consult a qualified California family law attorney.

            Author Traci S. Mason is an attorney at Porter Simon licensed in California. She is the lead attorney for the firm’s Family Law Division where she focuses on all aspects of family law. Ms. Mason can be reached at mason@portersimon.com or http://www.portersimon.com