Audio taping childrens visitation call

North Carolina Divorce Law Divorce and Separation Answers
1

At a custody hearing, I was pro se, my spouse was represented. My spouse played a recording of a visitation call between me and my son (5 yrs old) on a cell phone that I added onto my plan and gave to the kids for calls to/from the kids. Neither myself nor my son knew of the recording. I have read other posts on audio taping laws and the Rosen website. The latter talks about it breaching NC and Federal eavesdropping and privacy laws. The responses to posts are somewhat ambiguous, depending on whether the parties to the call are in attendance during playback and whether judge allowed it to be heard (remember, I was pro se and didn’t think about objecting). The content was an upset me telling my son that my spouse got me arrested on false allegations, nothing more. I have filed for civil damages for illegal taping and would like an arrest to be made given on paper it was an illegal activity. So far, the police and Feds are unsure whether to arrest or not, claiming it was ok to record if the minor is in the custody of the parent (even though the other parent is not party to the call) and deemed ok by the judge by virtue of listening to it.

I believe there are clear grounds for a criminal prosecution through state or federal law, but how to do so?

2

In NC, you must have the consent of one of the two parties to record a conversation, which is usually the case between say two spouses, and one of them is secretly recording the conversation. This is a slightly different story though since it’s you and your child, which was taped by your spouse. I cannot say if you have an actionable claim though or not because I cannot advise on criminal law matters.

3

Thanks Ms. Russ. I noticed there is a page dedicated to electronic recording on Rosen’s website that concludes that such recordings would violate state and federal law, and no appeal has yet created a precedent in NC. Is that write-up still accurate? Just didn’t want to see a criminal attorney if that guidance is now out of date. Thank you!

4

Yes, that write-up is still accurate. My prior response (which reflects the write-up) is the extent of the legal advice I can give on this topic since it’s a criminal matter and this is a general family law forum.