Some parents who are facing divorce or separation may feel the urge to record their communications with the other parent, with the child, or the other parent with the child. Recording conversations can happen in different settings, and with different types of devices. In most cases, a parent would opt to record secret conversations to use them as evidence during a child custody case. 

Working with an experienced attorney throughout a child custody battle will help you to avoid any costly mistakes related to conversation recordings. 

It is important to know that not all evidence is admissible in court. The nature of recordings will be scrutinized by the judge whether they are legal and admissible to be used or not. Most states in the U.S would require you to have the consent of the person or people involved in the conversation before the recording is made for it to be accepted. 

These states include California, New York, Nevada, Montana, Florida, and Washington among others. 

Some parents, therefore, may want to record the conversations with the other parent to seek grounds to make that parent look unfit and unsuitable to hold custody. These may be seen as a malicious move by the court and even with the concrete conversations between couples, the court will always want to protect the best interests of the child. Some of the things that the court will consider before granting anyone custody would be:

  • The mental and the physical fitness of the parents. 
  • The ability of the parent to provide all the needs for the child. 
  • The suitability and comfortability of the home environment. 
  • The age and preference of the child. 
  • History of domestic violence, neglect, and substance abuse. 

Therefore, a judge would want to use all the valid evidence provided to ascertain the fact that a parent would meet the conditions to be granted custody. However, not all kinds of conversations would be admissible, if the recording goes against the law. 

Can Recordings Be Used As Evidence?

Child Custody – Should I Be Recording Conversations?

Yes and No. Recordings may be used if they are valid evidence and do not break the law on eavesdropping. For instance, Penal Code 632 PC of California law prohibits the use of electronic or recording devices to record confidential and private communications between and among people. 

A parent who records the conversation of the child and the other parent secretly without consent would have broken the law and such may not be admissible in the court as evidence. However, there are instances when such conversations may be accepted as evidence. 

What Counts As Public Recording ?

Any communication that is done in public and where anyone may hear without struggle does not need any privacy since that communication is not private and confidential. With this recording, the court may consider it as evidence and not a crime of eavesdropping. 

What Counts As Private Recording ?

This is where a parent records the conversations between the other parent and the child privately, or their conversations without the consent of the other parent. Without consent, it may go against the law and hence is unable to be used as evidence in court. 

Recording Of Children 

Most parents may find it easier to record the child’s conversations than that of the other parent. It is also possible to record a child conversing with the other parent, or when the child reports back after spending time with the other parent. In the case of parental abuse, there may be no other way to obtain the truth, than to record in secret.

Child Custody – Should I Be Recording Conversations?
This Entire Conversation is Off The Record

A judge would want to analyze the facts in that situation to check whether that would be admissible to be used as evidence or not. When doing that, the central point is whether the parent did so in the best interests of the child, or with a different objective. An ill-motive recording would be discarded by the court and may not find its way in the trial. 

Reasons Why You Should Stop Recording the Other Parent 

While recordings would otherwise provide concrete evidence in a child custody case, such recordings may violate the law if not properly done and with consent. As we mentioned, it is illegal in most states to record private and confidential conversations as such violates the law and thus would fail the evidence test during a child custody case. 

Recording conversations may also look manipulative. A judge may perceive the parent to have done the recordings to maliciously paint a bad picture of the other parent. This is especially true if all the recordings capture negative things or statements by the other parent. A judge could, therefore, conclude that such recordings may have been done after provocations or with an ill-motive. 

Recording the other parent may also call for the need for more investigations and evaluations into the matter where both parents will be investigated by the court-appointed representative. That means conversations alone may bring more than what you were prepared for. 

Reasons Why You Should Record Conversations 

If you are keeping a child custody journal, you may want to back it up with recordings of your conversations between you and the other parent, the other parent and the child, and between you and the child. While doing this, it is important to let all the parties know that your smartphone keeps records of their conversations so that you can have the consent to keep the conversations. 

If your smartphone keeps record of all conversations, then it would reduce the chances of the judge taking your recordings as manipulative. Also, you may only want to keep those records if it serves the best interests of the child, and where you may need to use them in a child custody case, you will be lucky to have them if they can be admissible before the court. 


It is only wise to record conversations without ill motives or being manipulative. 

You may record communications with the child, with the other parent, or between the other parent and the child but beware of the nature of your recordings so that you don’t, in the process, violate the law and make your recordings illegal and inadmissible whenever you want to use them as evidence in a child custody case.