In the age of social media, email, and cell phones, spying on a current or former spouse can be tempting especially in the face of high conflict litigation, such as divorce or custody proceedings. Don’t let it be.
Electronic surveillance, recording telephone conversations, or hacking into a spouse’s email or social media account, for numerous reasons, not the least of which is the potential illegality of the act, is never a good idea. Not only is this often in violation of state and federal law, but it is often fruitless and only increases the tension and hostility in a case.
Federal law, along with many state laws, prohibit wiretapping, making it illegal to listen in or record someone’s conversation without his or her prior consent. In California, wiretapping is a criminal offense punishable as either a misdemeanor or felony and may lead to civil monetary damages. Eavesdropping, similar to wiretapping, is also illegal. California also has laws against hacking into emails.
Furthermore, electronic surveillance and tracking can also be part of the pattern of control and terror used by perpetrators of domestic violence. Such behavior can lead to domestic violence or stalking charges, or at the very least a restraining order. For example, in a California custody case, In Re Marriage of Nadkarni, an ex-Husband hacked into his ex-Wife’s email in order to gain leverage in a custody dispute. Once he attempted to use the emails in the custody proceeding, the ex-Wife sought and eventually obtained a Domestic Violence Restraining Order. On appeal, the appellate court held that the ex-husband’s actions destroyed the “mental or emotional calm” of his former spouse by accessing, reading, and publicly disclosing her private emails.
Is recording conversations ever allowed? Yes.
There are times when it may be prudent to record the harassing or threatening calls of an ex- or current spouse or partner. In such a case, a Court can make an order allowing for one or both parties to record the conversation of another. The key is that these are court sanctioned recordings and the recordings may be admitted as evidence in a legal proceeding. Similarly, law enforcement may seek a warrant to authorizing their own electronic monitoring.
If you do have suspicions about a spouse or co-parent’s financial activities or parenting practices, speak with a qualified attorney. An attorney can speak to you about legal means of obtaining the same information without losing credibility in court or compromising your case. If you do engage in illegal electronic snooping, you risk criminal and civil charges and losing credibility in Court…and the evidence will be inadmissible.
 Pen. Code 631(wiretapping); Pen. Code 637.2(authorizing civil damages).
 Pen. Code 632.
 Pen. Code 502.
 In Re: Marriage of Nadkarni (2009) 173 Cal.App.4th 1483.
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Maria E. Crabtree, CFLS