by Samuel K. Darling, Divorce attorney at Genesis Law Firm
Can I use a recording of my spouse in my Washington divorce?
Generally no, though there are many exceptions. Washington is a “two-party consent” state, meaning you need the speaker’s permission to record a private conversation. The applicable statute – RCW 9.73.030 – makes most types of audio recordings illegal. In turn, RCW 9.73.050 bans courts from admitting these illegal recordings as evidence in criminal and civil cases, including divorces and other types of custody battles.
The following are common exceptions to these rules:
1) Video Recordings. The primary rules banning recordings as evidence – RCW 9.73.030 and .050 – do not apply to video. Surveillance video is usually admissible in a divorce so long as it is relevant. Arguably so are most cell-phone-video recordings if the sound is turned off. If your spouse throws a tantrum in front of Walmart’s security cameras, get the footage. Or if you spouse is hallucinating on meth, make a video-only recording.
But do not assume you can get away with putting a camera in places you intuitively know you should not, such as in a bathroom or changing area. Someone might turn around and sue you for invasion of privacy. Unreasonably monitoring your spouse could also be construed as stalking. Put simply, nearly all relevant video recordings are admissible as evidence in your divorce, but you might pay a steep price for the evidence if you violate commonsense rules of propriety.
2) Guardian ad Litem. A Guardian ad Litem (GAL) is someone appointed by the court to investigate child custody-related matters and report back to the court. Judges usually follow GAL recommendations, and GALs often consider inadmissible evidence when formulating their custody recommendations to the court. If you have an illegal audio recording of your spouse saying something relevant to your custody battle, you might consider requesting a GAL investigation. GALs are not always beneficial however. To determine whether one is right for you, watch Genesis Law Firm’s free video entitled Guardian ad Litem: Do I want One for My Child Custody Case?
3) No Reasonable Expectation of Privacy. The rules prohibiting audio recording apply to “private communications” only. Notably, most one-on-one communications are deemed private even if a recording device is visible. A communication is NOT private if a) the two of you are speaking in loud voices in public, b) you state on the audio recording that you are about to begin recording the conversation, c) you are communicating in a group setting, or d) your spouse intentionally left the audio communication on a recording device, such as an answering machine.
If you want to make an audio recording, the safest bet is to say “I’m recording this conversation” at the beginning of the recording.
4) Harassing Communications. The statute prohibiting unilateral audio recordings explicitly exempts the recording of “communications . . . which occur . . . repeatedly or at an extremely inconvenient hour”. If your spouse is harassing you late at night, feel free to take out your recording device and leave on the sound.
5) Illegal Threats. Similarly, the two-party consent statute exempts audio recordings of “communications . . . which convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands.” Do not hesitate to secretly record your spouse if he or she is making illegal threats or demands, such as threatening to kill or hurt you or your family.
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I don’t understand legal languages well. If someone is verbally abusing their spouse and the the spouse pulls out their phone and says I’m recording you and they keep screaming, is that allowed in court? Or no video? And only if they say ok?
Hi Tricia, Washington’s Rules of Professional Conduct limit my ability to respond to your question. I can’t answer a question about your specific situation without performing a client intake, which in turn ensures our firm doesn’t give advice to both parties in the same case. I can, however, update our article to address issues we failed to write about. If you’d like us to write or expand on a topic, please feel free to write another comment. Otherwise you might be better off contacting someone who can give legal advice about your situation. If you can’t afford an attorney or want to keep costs down, we have a list of low-cost and no-cost alternatives in this article: Can’t Afford a Lawyer.
can I use a recordings of my child screaming and crying and pleading not to go with her father every time its time to switch. she is 4 years old and I feel as the father is mentally hurting my child and spanking her to hard.
I’m sorry Rachel. The rules of professional conduct prohibit us from offer advice on how the law applies to a particular person’s factual scenario. We would need to perform a client intact and conflict check for that, which isn’t feasible through the comments section of an article. If you would like us to flesh out a particular section of the article that you believe is underdeveloped, please feel free to point it out. I wish I could be of more help.
I’m not a lawyer of course just a mom of 21 years (I’m 55). But it seems to me Rachel that if you are really concerned about your daughter’s welfare you will take the damn phone out and record it. I don’t know why that is questionable to you. I just got done reading above and the spirit of this law is to protect the speaker right? …and in a private conversation setting right? …so this obviously is not a “private” conversation seeing as how a passer by could hear it; #2 if it’s your daughter screaming she’s the one who would be would be need to give consent and 3rd of all you whip out your phone you say I am recording this and So If she continues screaming it’s complete consent and if he says I don’t give consent then just tell him then don’t speak or leave. Or hey, Set your phone up as surveillance or get a $25 nanny Cam with video and audio and set it up as surveillance because they said above that surveillance doesn’t fall under this law. Also I remember reading here or maybe somewhere else that if there is A real fear of bodily harm then you record it. I mean I think the worst that would happen is that it would not be admissible in court; I doubt they would arrest you and charge you for recording it if you’re trying to help your daughter. And oh my God that is another thing are you really going to let this man take your daughter away if you think hes spanking her too hard he shouldn’t be laying a frucking finger on her. there are so many things wrong with your questions I just can’t wrap my head around the fact that this is a real question are you a real person. I mean there are so many things wrong with your question just get the damn thing recorded. And ask your daughter the questions is he laying his hands on her. He should not touch her body in any way her body is hers. Grow some balls, please. For your daughter’s sake.
I know it sucks I am a single mom too. I raised my daughter by myself with no boyfriend; and her dad saw her very little and when she would cry when it was time to go over to his house every single time Because of the mean stepmom (she was only 4 also). I told her you don’t have to go over there baby you don’t have to do a damn thing that you don’t want to do.
Her dad got all pissy of course but my daughter is most is the most important thing in the whole entire world more important than me getting in trouble more important than him getting his fair days allowed by the court more important than then any frucking law. And the dad got over it. I would throw in his face well if she wasn’t so freakin sad and depressed every time she goes over there then I wouldn’t have a problem with it but you obviously aren’t spending quality time and that’s what this is all about so get over yourself that’s my daughter not yours. You’ll see her during the day only, no nights. You’re just a sperm donor and a check in the mail Who can’t control their crazy jealous new wife. Those are called hairy fricking balls.
Yes you can record your child since she is under 18 years old. You can record your child without their consent. Thats why you can make cute videos of toddlers and stuff and they dont have consent.
So if you call a consumer service number, and they have that standard, “your call may be recorded…”, does that count as consent for both parties and allow you (the caller) to record the conversation?
Absolutely, yes.
What is the expectation of privacy in my home in regards to audio recording visitors in Washington State? Just to be clear , if somebody came to my house and I knew they were going to tell me things that I could use in court, would that be legal?
My ex-wife sent me an angry email falsely accessing me of emotionally abusing our child and stating our child is afraid of me. The statement is of course ludicrous and I know it was made out of anger as my son is with me now and having a great time. However, being that this is a defamatory situation, can I record her mother stating that the claim is false, while also recording other damning evidence against the mother of my child?
This is the best law firm site I have ever come across. I AM MAJORLY IMPRESSED. I love the way you guy explain laws in layman’s terms. Just wanted to say this website is sweet! That’s all! Thanks.
Does making monetary threats in a video recording count as illegal behavior? For instance. If I have a video recording of my spouse telling me that he will make sure I have nothing by the time the divorce is over and that he will make sure Im a crack whore living on the streets if I ever file for divorce. And then follows through with dispensing of community property during the divorce proceedings, does that exempt the video?
Can I record a conversation after someone hits my car in washington state?
Actually that 4 year old is an “at risk person” so with that just one party consent is admissible in court in the state of washington.
Also I forgot to mention, the same applies to federal courts. If you are an “at risk person” such as what I am, a Transsexual Woman, one party consent is admissible in Federal Court.
Thank you for this information- it is really helpful . What is the intent of the law? From what I gather it is to prevent purposeful audio recording of a crime of civil legal matter? The example I can think of is secretly recording a spouse on purpose with an expected or predictable response . But what about recording that is not specific? If a ring camera unexpectedly catches a person saying something , but the person didn’t set out to record them saying that. And the conversation was not between the owner of the camera and the speaker? From what I can tell , this law is to prevent audio recording where a person set out to get the speaker to admit something and they do know they are being recorded? Hypothetically if I have a ring camera and someone who I don’t know is going to admit to a thing let’s say a bank robbery(not to me) and I review my cameras and I hear this and tell law enforcement are they not allowed to use it?
Rat
I live in an apartment complex in the Spokane area and the couple living below me are extremely loud and they fight regularly. The guy is a real yeller. Doors shut, windows closed, and I can still hear him word for word. The Voice Memo app on my phone easily picks up what hes saying. Is it legal to record him without giving prior notice?
My friend came over an wanted to talk to my kids which is normal when she comes over but this time she had been drinking if my ex recorded that conversation can he use it in court? Even though my kids were not with me. She took my phone an called them via video chat.
So question can my job record audio of me talking to my 2 coworkers in a group setting. Say we were talking about past experiences with being intoxicated at work or where we may have stole a chicken nugget or 2. Or maybe just bad mouthing a managaer
If my ex admitted to being pregnant and I have a phone call recorded of it , then offered her money for a pregnancy test to be taken and at the end she said it was negative could I use the recording in a court against her if she didn’t consent to the recording?
Unconstitutional per 9th circuit.
“In a two party state” If the person recording was one of the “two people” in said recording; than it would be constitutional; as that person is witness to that recording.