One of the best pieces of evidence I like to use on both child custody and divorce cases is audio and video recordings of your spouse. There are both federal and state laws that go hand-in-hand with both of these and you have to be careful about what you do. As far as audio recording, Texas is a one party consent state. In other words, this means that one of the parties to the recording has to know that they’re being recorded.  Basically, this means that you are the one person who consents.  You, of course, are consenting to your conversation with your spouse. The spouse does not have to know that they’re being recorded. As long as it’s just you and your spouse on the recording, it is perfectly acceptable.

A problem with this regulation tends to come about when a spouse tries to record a conversation between their spouse and a third-party (I.e. a girlfriend or something of the like). In that case there are three participants. The spouse and the two people having the conversation. It is against the law and federal law to record a conversation between two people. This is an issue because of the fact that there is no consent from one party. In this case, you cannot provide consent to your spouse because your spouse is having a conversation with someone else.

Again, these types of conversations are not only unacceptable, they are illegal.

So, how do I use audio recordings?  If there is a recording of a spouse being verbally abusive or even physically abusive, it can be very helpful in court. If a court hears this evidence, it will go a long way in terms of making custody determinations. For example, I have had cases where the spouse can be heard slapping the other spouse on the audio tape. This helped win a father custody. A piece of evidence like this can be a huge deciding factor in a case.

Next, there are video recordings. There are less rules that go along with video recordings. There’s not any type of consent that is needed. You simply record your spouse. You can do this using your phone or with any type of hidden camera. These video recordings can be useful when your spouse is either with someone with whom they are having a romantic relationship or if they become physically or verbally abusive at any time. It also helps in court if they are shown drunk or using drugs on the video.

With the advent of today’s technology, more and more video and audio tapes are being played in court. It actually puts the judge at the scene of the incident and allows them to evaluate for themselves what happened. It is no longer he said she said. The taped shows at all.

If you have questions about how and when to record, I would recommend consulting with me about these issues and how they can assist winning a custody or divorce case.

CategoryLegal Advice