Can You Secretly Record Your Spouse to Win Child Custody?

January 24, 2020

When spouses separate, it’s an emotionally charged situation. When children are involved, the stakes become much higher. In a custody dispute, people can be tempted to do whatever they feel is necessary to win custody of their child. This often includes trying to make a secret recording of their spouse doing or saying something that is damaging to their case and reputation. You may even have a valid reason for wanting to document something to support your case in court.

Secretly Record Spouse

In Pennsylvania, you cannot record other people without their consent. Secret records are inadmissible in court. In addition, you may be susceptible to severe consequences. Instead of strengthening your case, you could face years in prison, fines and other penalties.

Overview of the Pennsylvania Wiretap Act

Under the Pennsylvania Wiretap Act (18 Pa.C.S. Sec. 5703), it is illegal to make a secret recording of another person. Pennsylvania is one of only 12 states where both parties must consent to be recorded in order for the recording to be admissible in court. Under the Wiretap Act, it is illegal to make audio or visual recordings of another person in situations where they have reasonable expectations of privacy.

Public vs. Private Recordings

If your spouse acts out in a public setting, bystanders may capture the event on their cameras. This is an example of a public recording, and it may be admissible in court. Cameras are practically everywhere in modern society — we surrender our consent for recording every time we leave the house.

Outside of a public setting, an expectation of privacy becomes an entirely different argument. Making a secret recording violates two-party consent and can lead to a third-degree felony conviction.

Violating the Wiretap Act

There are three primary ways that someone can violate the Pennsylvania Wiretap Act. In most situations, a violation will damage your custody case and will likely result in criminal charges. Under 18 Pa.C.S. Sec. 5703, it is illegal to:

  • Make a secret recording of your spouse
  • Show that secret recording to any other person
  • Use a secret recording against your spouse in any way

Committing or attempting to commit any of the above is a violation of state law. In today’s world, a visual or audible record is possible on everything from a smartphone to a nanny cam. Any recording at all, made without the other person’s knowledge and consent, could lead to felony charges. If you’re not sure, speak to an attorney.

Potential Penalties for Making a Secret Recording

In the vast majority of criminal cases, ignorance is not an acceptable excuse for breaking the law. All citizens are expected to possess a basic knowledge of state law. As a consequence, the courts will be strict on those found guilty of violations. If you secretly record your spouse in an attempt to win custody of your child, you could be facing:

  • Arrest and a costly trial
  • Up to seven years in state prison
  • Court fines up to $15,000
  • Designation as a felon

In Pennsylvania, making a secret recording is a third-degree felony. Designation as a felon is one part of your sentence that continues long after completing any prison term. In Pennsylvania and nationwide, a felony conviction can lead to:

  • Loss of voting privileges
  • Inability to run for public office
  • Loss of second amendment rights
  • Difficulty obtaining college financial aid
  • Challenges finding employment and housing

Child Custody Attorneys in York, PA

In addition to felony charges, a secret recording can expose you to civil lawsuits with monetary damages. If you’ve been accused of secretly recording your spouse or any party in the State of Pennsylvania, you need a defense attorney with experience responding to those charges. Our firm offers personalized, strategic legal counsel for child custody matters, divorces and more.

If you’re facing a child custody dispute in York or anywhere in PA, you need an attorney experienced in Pennsylvania family law. Beyond risking custody of your child, you could be facing severe civil and criminal penalties if convicted of secretly recording your spouse.

To speak to the MPL Law Firm about your custody case, divorce or another family legal matter, call 717-845-1524 today or schedule a consultation today.


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