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Should I Record My Children or Spouse for Evidence?

Maybe you know your spouse is lying. Maybe your kids want to live with you and just don’t want to tell the other parent. Maybe your partner is verbally abusive when no one is listening. Maybe your spouse has admitted something that will help you in court. You have your phone in your pocket, ready to record. Should you use it?

The answer is: it depends. In Tennessee, it’s generally legal to record someone having a conversation with you, even if they don’t know they are being recorded. You can use that recording in Court as evidence, subject to other evidentiary rules, like hearsay. That’s because Tennessee is a “one party” state. This means only one party to the conversation needs to know about the recording.

But even in Tennessee, there are exceptions. For instance, you can’t record a conversation you aren’t a part of yourself. If you record two other people without their knowledge, you could learn later that you have broken both state and federal wire-tapping statutes. You might be charged with a felony.

Other states have more strict rules. For instance, if the person you are recording is in Florida, then you can’t record them, even if you are part of the conversation. If you do, you can’t use the recording as evidence in court. You may be subject to state and federal prosecution. That’s because Florida is a “two party” state, meaning both parties to a conversation have to consent to being recorded.


Perhaps more important than the legality of recoding is the impact of recordings on your children. In Tennessee, under a doctrine called “vicarious consent,” a parent can record their child and use that recording if that Court determines the parents was acting in good faith and in the best interest of the child. Aside from the legalities, consider how the child feels. Children don’t like to be in the middle of their parents’ divorce case. Recording them puts them “on the spot.” Children need to feel like they can trust their parents. Recording them without their knowledge betrays that trust.

The same is true, to a lesser degree, with your soon-to-be-ex. Even after the divorce, and especially if you have children together, you are going to be a family – you will just be a divorced or blended family. You will still have to interact with this person. Recording them, and then attempting to use their words against them in the future, does nothing to foster a positive relationship.

If you are going through a divorce where the thought of recording someone is even going through your head, you are likely too close to the situation to analyze the consequences of your decision. If you have any questions about recordings as evidence, please give us a call. We are here to help.

Margaret Held is an attorney at Held Law Firm.