Wiretapping and Electronic Surveillance During an Alabama Divorce Proceeding
Couples going through a divorce in Alabama must follow specific rules. Divorce court is not an “anything goes” environment. Wiretapping and electronic surveillance have been common in Alabama divorce proceedings. Unfortunately, for some, the interception of communication in an illegal way any information they obtain is useless during court, and the offending party could be charged with a crime and even sent to Federal Prison. It is always essential to contact an experienced Alabama divorce lawyer before doing something foolish and landing yourself in jail while trying to obtain the upper hand in a divorce proceeding. Carpenters use the adage, “measure twice, cut once.” In divorce law, you should prioritize consulting with your attorney and developing a strategy for any divorce proceeding or action on your part that could harm or help your impending divorce matter.
In Alabama, any conversation taped without prior knowledge or consent of the people recorded is against both State and Federal Law. Recording conversations often referred to as wiretapping or electronic surveillance without their knowledge, is a misdemeanor under state law and a felony under Federal law. The illegality of the conduct is hard to dispute as well.
Exceptions to Alabama and Federal Wiretapping Laws
As with most laws, there are exceptions. If you are a divorcing spouse, you can record your own conversations with your spouse because an exception to the wiretapping law is when the wiretapper is an actual party to the communication or has prior consent. These rules apply to most communications, not simply telephone communications, provided that neither party to the communication was aware of the conversation being taped. Criminal charges are rarely filed in divorce proceedings but have been known to happen.
Not only does a divorcing spouse face possible criminal charges, but the information they obtain also cannot be used in court because the “fruit of the poisonous tree” doctrine precludes illegally obtained information from being admitted at trial.
Can I record my child talking to their Mother or Father?
A father or mother going through a divorce in Alabama can record their children speaking to their other parent under some circumstances. A custodial parent can vicariously consent for any child less than 19 years of age to the taped conversation. Alabama courts have also concluded that parents have a common law duty to protect their minor children. It is up to the parent to decide what is necessary for the protection and presentation of the child as long as he acts a reasonable and ordinarily prudent parent would act in similar circumstances. Suppose a parent has a good faith belief that is objectively reasonable for believing that a child is being abused, threatened, or intimidated by the other parent during private communications between the child and that parent. In that case, the wiretapping parent may vicariously consent for the minor child to the tapping of the conversation.