By: Victoria E. Paone, Esq.* 

Do you suspect that your ex-spouse has been recording your conversations with him or her? Are you worried about your soon-to-be ex-spouse recording your phone calls with your children?  Regardless, it is important to know the law and what it means for you should someone attempt to bring an audio recording of a conversation, to which you were a participant, into court.

New Jersey is a “one-party consent” state.  This means that if you are a party to a conversation yourself, you can record it without telling the other person. Likewise, if you are speaking with someone and that person is secretly recording your conversation without consulting you, this is also legal because the person recording you is providing their consent. However, a third party who bugs your phone and is not communicating with you cannot legally record your conversation without your consent or the consent of the person with whom you are conversing.

In addition, it is legal in New Jersey for a parent to tape record a child’s conversation with any person pursuant to the “vicarious consent” doctrine.  This doctrine stands for the proposition that as long as the parent “has a good faith reason” and is promoting the best interest of the child, he or she may consent on behalf of their child to the recording.  In D’Onofrio v. D’Onofrio, the case which established this doctrine, the New Jersey Superior Court, Appellate Division held that it was permissible for the father to tape record the conversations the children were having with his ex-wife based on “a good faith, objectively reasonable belief that they were being threatened, intimidated, and verbally abused by their mother, whom he suspected of trying to undermine their relationship with him.”

For those persons going through a divorce or communicating with an ex-spouse, it is very important to understand that any communication, whether it be phone calls or emails, might end up in front of the court.  It is safer to assume that you are always being monitored. Notwithstanding, no one knows how a judge might perceive the character of a spouse who attempts to bring secret recordings into court. The best course of action is to contact an attorney about the facts and circumstances of your case and inquire whether audio recording is appropriate for your divorce matter.

* (Editor’s note: Victoria E. Paone, Esq. is an associate at the Law Offices of Paone, Zaleski & Murphy working out of the firm’s Red Bank office, located at 120 Maple Avenue. Victoria’s professional history includes clerking in Monmouth County for the Honorable Mara E. Zazzali-Hogan for both the Family part, Chancery Division and Civil Division for 2016-2017. She is currently a member of the New Jersey State Bar, Middlesex Bar Association, Monmouth Bar Association and Aldona E. Appleton Family Law Inn of Court. Victoria limits her practice to divorce, child support, child custody, equitable distribution, alimony, domestic violence, alimony, palimony and all other family law issues. Her monthly column, “Divorce Hotline,” will serve to inform readers as to family law news, advise as to the divorce process, comment on recently published family law cases and more. Paone, Zaleski & Murphy can be contacted at 732-750-9797.)