This is a very complicated question with answers that turn on detailed factual analysis. As a general legal rule, if one domestic party to a conversation in Indiana consents to its recording, it is lawful to do so. However, if this crosses state lines the analysis may change.
However, there are numerous exceptions to the controlling State and Federal Law. Thus, in domestic or other cases, the statutory text and case law interpretations should be specifically consulted. In Indiana, the controlling law is the Indiana State Wiretapping Act. Ind.Code § 35-33.5-5-1 et seq. The Federal Wiretap Act is codified at 18 U.S.C.A. §§ 2510 – 2522.
Assuming the recording of the conversation is lawful, a proper evidentiary must be laid for admissibility into a trial. Nevertheless, as awful as it is, a parent may sometimes record the other’s conversation, along with that of the children; and it may be admitted into the trial evidence. But it may well backfire.
That is the critical take-away from this blog. Why? Parents embroiled in illicit acts in custody evaluations often demonstrate patterns of alienation and isolation to the detriment of the other parent’s relationship with the children. At Dixon & Moseley, P.C., we are sometimes presented with what is reported to be a “smoking-gun” audio tape of a parent-child conversation.
Yet in the final analysis, it is not what it appears to be and actually is harmful to the parent’s legal position who makes the recording. Many Indiana cases back this up. For instance, in the 2010 Tamasy v. Kovacs case, the mother’s treatment of the child during recorded conversations was a substantial basis underlying the trial court’s modification of physical custody from mother to father. Again, this was based on mother’s recordings.
Specifically, at trial, the custody evaluator referred to the Mother’s recorded conversations as “relentless, conditional, heavy handed and guilt producing . . . .[indicating] Mother is in the need of individual counseling to develop insight into how her manipulative behavior is impacting her children.”
Tape recorded conversations may be criminal under State or Federal law. This includes conversations between spouses or ex-spouses and/or children. Even if violations are not charged criminally, they may have profound, unintended consequences for domestic litigation. Caution is urged.
Routine recordings should be avoided. In addition, any consideration of making such should be with a full understanding of the law. In addition, as pro se litigants are held to the same standard as licensed attorneys, a mistake may not just be pushed aside. It may result in criminal exposure or have profound implications for child custody litigation.
Perhaps Dixon & Moseley, P.C. attorneys may be your advisors in child custody litigation or in situations where you face a myriad of legal issues surrounding recorded phone conversations. For parents who have violated the law, this may require asserting the Fifth Amendment Privilege against self-incrimination. In other cases, this may be a decisive moment and turning point in child custody litigation.