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legaleagle
legaleagle, Lawyer
Category: Family Law
Satisfied Customers: 13441
Experience:  Practicing attorney for 10 years
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My daughters father and I are in a court custody battle. Tonight,

Customer Question

My daughters father and I are in a court custody battle. Tonight, when I was on the phone with her, I discussed some things with her. It was the truth and there was no name calling but I'm sure her father wouldn't want her to know the truth.

He got on the phone and told me my entire conversation had been recorded and that he was contacting the court tomorrow to let them listen to the tape.

Can a taped phone conversation such as this one be used in court against me? Is there anything I can do ? He is in Michigan and I am in Arizona.
Submitted: 3 years ago.
Category: Family Law
Expert:  legaleagle replied 3 years ago.

legaleagle :

Which court has jurisdiction, Michigan or AZ?

Customer :

Michigan

legaleagle :

In MI the law requires that all parties to a tape recorded conversation give consent, so since you did not give consent he can not use the tape and you can object to it being admitted on the grounds that it is an illegal recording.

legaleagle :

Any person who willfully uses any device to overhear or record a conversation without the consent of all parties is guilty of illegal eavesdropping, whether or not they were present for the conversation. Illegal eavesdropping can be punished as a felony carrying a jail term of up to two years and a fine of up to $2,000. Mich. Comp. Laws § 750.539c.


In addition, any individual who divulges information he knows, or reasonably should know, was obtained through illegal eavesdropping is guilty of a felony punishable by imprisonment for up to two years and a fine of up to $2,000. Mich. Comp. Laws § 750.539e. Civil liability for actual and punitive damages also are sanctioned. Mich. Comp. Laws § 750.539h.

Customer :

So federal law wouldn't prevail since the phone conversation was across state lines?

Customer :

Meaning, he called me (in Arizona) from Michigan

legaleagle :

The federal law would apply but the conversation was with you and your child, the child can not give consent since they are a minor and you did not give consent so he did not have one party consent.

legaleagle :

Federal law may apply when the conversation is between parties who are in different states, although it is unsettled whether a court will hold in a given case that federal law "pre-empts" state law, but either state may choose to enforce its own laws.

legaleagle :

Based on my reading of the law the MI law will control since he called from MI and the call would be entered in the MI court. I think you have grounds to have it kept out of evidence.

Customer :

The court couldn't say that the father gave consent on the minors behalf then?

Customer :

Thanks you have been wonderful and have given me real peace with this. I will accept your answer so you can get paid.

Customer :

when you said that the minor couldn't give permission because she is a minor, could the courts interpret that as the father could give consent for the minor ? Since he is the father?

legaleagle :

No he can not give consent for her since he was not a party to the call.

Customer :

Thanks again for your help! I will sleep good tonight :)

legaleagle :

You are welcome.

legaleagle, Lawyer
Category: Family Law
Satisfied Customers: 13441
Experience: Practicing attorney for 10 years
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