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The law is often misunderstood by lay people and lawyers alike in Texas as to the legality of recording conversations over the telephone in Texas. The general rule is you may record a telephone conversation in which you are a participant even if the other person or people do not have knowledge of your recording the telephone conversation. This is the general federal rule as well. You may also use the recording for any lawful purpose. Problems do arise however if you seek to use the recording in another state in which such may be illegal. You need to seriously discuss such with legal counsel in that state before use of the recording is even contemplated. For example, Maryland does not allow the recording of anyone on the telephone without their knowledge of such. Although you could legally record the telephone conversation in Texas, if you were to use the tape in Maryland, you may be prosecuted for such attempted use. Another problem arises often in the context of custody cases. A parent may not tape record conversations had by and between a child and the other parent even if the child is in the recording parent's home when such recording occurs. The tape may not be used, and the person who recorded the tape has actually committed a criminal offense. Some attempts have been made trying to circumvent this restriction. Often the telephone conversations of the other parent will be most revealing -- especially when they do not know they are being recorded. Despite such, the courts have universally refused to allow such. For an example, a spouse/parent recorded the other spouse/parent's telephone conversations in which it was clearly shown the other spouse/parent was encouraging the child to lie and to make up stories concerning the recording spouse/parent. While it as conceded the tapes could not be used as evidence in the case, the expert psychologist retained by the recording spouse/parent reviewed such. The expert child psychologist in part based his opinion on the tapes. The court ruled the psychologist's testimony could not be used since he had relied upon illegal evidence. Courts are sometimes skeptical of the recordings made. It is possible the recordings may not accurately reflect the parties' relationship since the recording party may very well have instigated a fight and then recorded it while keeping their own cool. The impact of the recording is subject to the entire range of circumstances at issue in the case, as well as the contents of the tape. Courts often question the motives of parents who interrogate their child on a tape and obtain self-serving and coached responses from the child. It can do significant harm to a case. The classic tape recording is always the after-midnight, half-intoxicated, half-infuriated other spouse/parent who calls to vent towards the other spouse/parent. There is nothing more compelling then listening to such a tape in the context of that person sitting cold-stone sober on a witness stand explaining what a great spouse and parent he or she is. The use of the tape to impeach the person's testimony is normally devastating. As such, there is certainly a time and place for recording conversations, but the taping spouse/parent must realize the context in which they are acting. Issues also often arise also in the video-taping of children, the video-taping of the pick-up and delivery of the children during visitation periods, and the video-taping of the other spouse/parent. While a person in a public place has very little if any expectation of privacy, a person does have such an expectation and responding right to privacy in their own home. When deciding how and when to make such video-tapes realize the manner in which the tapes are made reflect as much on the person doing the taping as on the person being taped. Nothing is more disheartening to a court than to watch a tape made of the other parent taping the first taping parent/spouse during the exchange of a child during periods of visitation. Battling video tapes reveal a level of hostility between the parents which also reveal an inability to foster a positive relationship by and between the child and the other parent -- an important factor in most judge's decision making process. That is not to say sometimes such is absolutely necessary, but it needs to be the rare exception and not the general rule. As a general rule, it is always best to live your life during a custody dispute or a divorce -- including telephone conversations with your spouse -- as if your actions and words were being viewed by a stranger or group of strangers who shall pass judgment on your conduct. -- The Law Offices of Steven E. Rogers |