Audio and Video as Evidence in Family Law

With the COVID-19 pandemic forcing more and more families together for extended periods and creating increases in stress in the family setting, it is no surprise that there has been a rise in domestic violence and tension between partners.

As cell phones and home surveillance systems become more commonplace and produce higher and higher quality recordings, electronic evidence has become a useful tool to parties on either side of a lawsuit, especially in highly contested divorce and custody cases. Social media accounts and their applications have become more invasive in our daily lives. Either party to a suit can use the data collected by these applications and your posts to support their claims. Examples of electronic evidence can be audio and some video recordings, photographs from phones or game cameras, Facebook or other social media posts and pictures, applications that include GPS, or the ability to track speeds and location.

Courts are often asked to review this electronic evidence, but can you record your partner without their consent in North Carolina and have the evidence used in your family law case? The answer is:  It depends.

North Carolina General Statute § 15A-287 states that a person is guilty of a Class H felony if they intercept and disclose a wire, oral or electronic communication without the consent of at least one party to the communication. What does this mean? North Carolina is a “single consent” or “one-party consent” state, and that if you are a party to the conversation and want to record it without the other party’s knowledge, you can. One caveat to this statute is that if you are recording a party in another state, the other state’s laws may be different, possibly requiring all parties’ consent to the conversation.

If you plan to place a video recording device in an area in or around your home, place the camera in a place that would not violate another’s privacy rights while on your property. Placing a camera in a bathroom or other area that the average person would expect their privacy to be protected would be problematic if you this evidence later and potentially open you up to civil and or criminal charges. If your camera records outside the home, keep in mind that you are not always a party to communications that occur in public, so ensure that any audio recording is deactivated. Failure to prevent audio recording when you are not a party can subject you to punishment under N.C.G.S. § 15A-287 above. Keep in mind that one party to the conversation must consent to have the conversation recorded before the recording occurs.

Remember, if you are not sure of what you can, cannot, should, or should not record, a family law attorney can help you decide the best course of action based on your situation.