In my practice, I often deal with allegations of unfit parenting or infidelity between parties. In these situations, one party may feel it is appropriate or even helpful to record their conversations with their ex to strengthen their legal case.
And with the advent of tools and applications on most smart devices that make such recordings easy to do, it may surprise you to learn that recording your ex may hurt you more than it helps your case.
Florida law prohibits unauthorized one-way recording
Florida is a two-party consent state. This means that, in order to record another person, the “recorder” must typically obtain that person’s consent. Without this consent, the recording cannot be used as evidence in any court proceeding and may also result in criminal and civil penalties.
In fact, each time that a recording is made or shared, the person recording or sharing that recording commits a separate criminal offense. And civil penalties can be assessed for every recording and instance the recording is shared.
And contrary to popular belief, there is no “exception” for spouses or exes involved in a divorce or child custody dispute.
Consent is key
In most situations, then, the person seeking to record another must obtain that person’s consent, or permission, in order to avoid criminal and civil penalties. But what are the “magic words” necessary to obtain this consent?
While certainly ideal (but neither practical nor likely), it is not necessary to tape the subject saying that they agree to being recorded. A person may consent through their conduct.
“This call may be recorded for quality assurance or training purposes.” You have no doubt encountered the all-too-familiar automated message when contacting the call center for a business or service provider. I doubt you responded to that message with an affirmative, “I consent to being recorded for this purpose!”
Instead, you probably stayed on the line, spoke to the representative, and concluded your call. By doing so, you consented to being recorded by that company. So too may a person consent to having their conversation recorded by another.
Exceptions to the rule
As recently as 2021, the Florida Legislature amended the statute dealing with this issue to provide for exceptions to the general two party consent rule.
One exception allows for recording by a victim of domestic violence where an injunction for protection is in place between the victim and the subject sought to be recorded. Another exception allows for a victim of child abuse or neglect to record the perpetrator of such abuse or neglect.
These exceptions apply in very limited circumstances and have specific requirements that must be followed to avoid criminal or civil implications.
Speak to a family law attorney at Mendoza Family Law
The law surrounding this issue is constantly evolving. A knowledgeable family law attorney can help you understand what to do with a recording, or whether it can be admissible as evidence, in your case.
I invite you to get in touch with me today for a no-commitment consultation to discuss your unique situation.