- Eavesdropping and Audio Recordings – Penal Code section 632 & Family Law Proceedings
- Likely all of us have made a call and gotten voicemail. When you leave a message you are consenting to be recorded simply by leaving that voicemail message. Likely we have also made videos of family and friends doing enjoying themselves and participating in activities. This ability has been made easy by our modern technology. Why would there be a problem in a family law case using this type of technology. That all depends.
- You have a duty to advise someone that you are recording them, because if you don't advise them and try to use a video or an audio recording, it may be successfully kept out of evidence in your family law matter.
- Penal Code sections 631 and 632:
The California Legislature re-wrote some very old law (going back to 1872) concerning public policy limitations in litigation proceedings to help protect the privacy of this State’s citizens. In particular, the Legislature modernized the wiretapping statute (Penal Code section 631) and the eavesdropping and audio-recording statute (Penal Code section 632).
In Family Law matters, technology still hasn’t quite progressed to make wiretapping a widespread or common issue, so this article does not address other than the reference, above. On the other hand, small and easily-concealable ‘smart’ phones give most everyone the ability to secretly video and audio-record anyone in their vicinity, and the ability to place an unwitting and unknowing person on the other end of the line on speaker phone such that third-parties to the phone call can hear what the person on the other end of the line is saying (and, potentially, these third-parties may be called upon act as witnesses against that person on the other end of the line).
Penal Code section 632 makes certain forms of evidence inadmissible in any proceeding (including Civil Law cases, and thereby Family Law cases) where the evidence was obtained in violation of the stature. Not only is such evidence inadmissible, the author(s) and co-conspirator(s) in the gathering such evidence can be charged with a misdemeanor crime under the statute. So, the stakes can be high. Under Penal Code section 637.2, there is also a civil tort for damages against a violator of the statute held by the victim whose privacy was illegally incurred-upon.
The elements of Penal Code section 632(a) are as follows:
- A person intentionally
- Uses an electronic amplifying or recording device
- To listen to or record
- A confidential communication via a device such as a telephone
- Without either the knowledge or concerns of a party to the communication
- Some case law has emerged concerning the interpretation and scope of these elements, inclusions, and exclusions. But the case law is thin and is still fleshing out through our trial and appellate courts in California and on the federal level. To date we have reported decisions focusing on debt collection practices (see Kuschner v. Nationwide Credit, Inc., E.D.Cal.2009, 256 F.R.D. 684), persons in the custody of law enforcement (see People v. Chandler (App. 1 Dist. 1968) 68 Cal.Rptr. 645, 262 Cal.App.2d 350), and in criminal proceedings for recordings not excepted by the statute (i.e. lawfully by law enforcement; People v. Guzman (2017) 11 Cal.App.5th 184, Cal.Rptr.3d 509 – holding that Penal Code section 632’s exclusionary rule for evidence obtained as a result of recording a confidential communication without the consent of all parties was superseded to the extent it is invoked to suppress relevant evidence in a criminal proceeding under the ‘Right to Truth–in–Evidence,’ Cal. Const. Art. 1 section 28 of the California Constitution, and therefore was unconstitutional as-applied in that case).
- Application in Family Law Proceedings:
One of the recent cases I encountered with implications under Penal Code section 632 involved a mother, while east of the Mississippi River, who allegedly made a suicidal threat and threat to harm her child while on the telephone with the father who was in California. Apparently, the father had put this call on speaker phone and either he himself or one of his family members audio-recorded the conversation. Subsequently, the mother moved to California and lived with the father for nearly two years without further incident.
- The recording was the center-piece of the father’s case for primarily physical custody when the parties broke up and the mother sought an order to return to her home state with the child, and a restraining order against the father. During my meet and confer conversation with the father’s attorney, the day prior to the hearing, I learned of the audio recording. I immediately prepared a Motion in Limine to suppress the audio recording primarily on the grounds that it violated Penal Code section 632 (as well as objection to relevancy undue prejudice as the recorded statements allegedly occurred two years ago). Not only was the entirety of the recording suppressed, the Court stated to the litigants that it was a crime to have recorded the mother without her knowledge or consent (there was no ‘this call may be recorded’ warning given to the mother at the beginning of the recording).
- The Court was correct both as to the recording itself, as well as the father placing the mother on speaker phone so that the father’s family member could record the statements on another device. Each of these acts, individually, were violations of Penal Code section 632, and both the father and the family member were co-conspirators with the other for each act. The evidence suppressed, the mother received her desired relocation back to her home state with the child, and she was very pleased.
- *** In order to have a recording entered into evidence the recording must be fully transcribed and provided to the Court, along with the recording.
Whether or not you are entitled to temporary or permanent spousal support is on a case by case basis. There are a number of factors a judge must examine. On a temporary basis, in San Diego County, the court will use the Dissomaster program. On a permanent basis the court must do an analysis based on Family Code Family Code §4320, which is as follows:
In ordering spousal support under this part, the court shall consider all of the following circumstances:
(a) The extent to which the earning capacity of each party is sufficient to maintain the standard of living established during the marriage, taking into account all of the following:
(1) The marketable skills of the supported party; the job market for those skills; the time and expenses required for the supported party to acquire the appropriate education or training to develop those skills; and the possible need for retraining or education to acquire other, more marketable skills or employment.
(2) The extent to which the supported party’s present or future earning capacity is impaired by periods of unemployment that were incurred during the marriage to permit the supported party to devote time to domestic duties.
(b) The extent to which the supported party contributed to the attainment of an education, training, a career position, or a license by the supporting party.
(c) The ability of the supporting party to pay spousal support, taking into account the supporting party’s earning capacity, earned and unearned income, assets, and standard of living.
(d) The needs of each party based on the standard of living established during the marriage.
(e) The obligations and assets, including the separate property, of each party.
(f) The duration of the marriage.
(g) The ability of the supported party to engage in gainful employment without unduly interfering with the interests of dependent children in the custody of the party.
(h) The age and health of the parties.
(i) All documented evidence of any history of domestic violence, as defined in Section 6211, between the parties or perpetrated by either party against either party’s child, including, but not limited to, consideration of:
(1) A plea of nolo contendere.
(2) Emotional distress resulting from domestic violence perpetrated against the supported party by the supporting party.
(3) Any history of violence against the supporting party by the supported party.
(4) Issuance of a protective order after a hearing pursuant to Section 6340.
(5) A finding by a court during the pendency of a divorce, separation, or child custody proceeding, or other proceeding under Division 10 (commencing with Section 6200), that the spouse has committed domestic violence.
(j) The immediate and specific tax consequences to each party.
(k) The balance of the hardships to each party.
(l) The goal that the supported party shall be self-supporting within a reasonable period of time. Except in the case of a marriage of long duration as described in Section 4336, a “reasonable period of time” for purposes of this section generally shall be one-half the length of the marriage. However, nothing in this section is intended to limit the court’s discretion to order support for a greater or lesser length of time, based on any of the other factors listed in this section, Section 4336, and the circumstances of the parties.
(m) The criminal conviction of an abusive spouse shall be considered in making a reduction or elimination of a spousal support award in accordance with Section 4324.5 or 4325.
(n) Any other factors the court determines are just and equitable.
(Amended by Stats. 2018, Ch. 938, Sec. 1. (AB 929) Effective January 1, 2019.)
If you are getting a divorce, you automatically pay alimony (or receive spousal support), right?
According to the CDC, there are over 800,000 divorces in the United States each year. A divorce involves many emotions, from anger to grief. The better prepared you are, the more likely you are to have an optimal outcome for yourself and your kids. If you have the right support, are fully informed of your options. and know what to expect from the process, you’ll feel more emotionally prepared to cope with divorce. From getting organized to enlisting support, these tips will help you survive and thrive emotionally during the divorce process.
When you are in the middle of a divorce and children are involved, you have to prioritize their needs. Even when the divorce is highly contentious, it will make it easier on you to focus on the children and do what you think is best for them. In general, if the children have a loving relationship with both parents, it is always best that the children get to spend quality time with both parents. Whether they live with one parent, or they divide their living time between both parents, children need a predictable schedule right from the start
There is little that isn’t difficult when it comes to ending a long-term relationship. There are things that you can do to make the process easier, whether it’s relieving pressure on the people involved or softening the blow to the wallet.