Recording non-custodial parent phone calls

[CuriousInATL]

What is the name of your state (only U.S. law)? FL

OK...this will be a long intro to a short question. Some background:
12 year relationship, non-married parents, 9 year old child. Father has prior domestic violence history, attacks mother for 3rd time with child at home (tried to suffocate). Police are called. Father leaves, files paternity action, mother seeks and is granted domestic violence restraining order prohibitng contact with herself and family. Mother and father try reconciliation but it fails...mother now feels courts won't take her situation seriously since she tried to reconcile. Mother seeks and gets temporary motion to relocate since father refuses to pay bills putting her and child on the street. Motion is granted, father appeals with emergency motion to stay, denied.

Mother moves to GA. Father is supposed to get a phone call from child every night at 8. Mother usually waits for him to call child (which is usually either a few minutes before 8 or as much as 10 minutes after 8). She has never prevented his speaking to his son. She waits for him to call so that his threats can be recorded....details coming. He spends most of his calls interrogating son about activities of mother and accusing the child of lying if he doesn't like the answer. "Where is your mother? Did she go anywhere? What time did she get home? Have you met her boyfriend yet? (She doesn't have one.) Did you go out for dinner? Who else was there? What time does your mother go to work? Is she by herself? Can you get her cell phone and look up who she's been talking to? Just don't let her see you or she'll get mad." When mother wasn't at home one night when he called the child (she was at store and 3 adults were at home with the child) he went berserk and told the child "The judge and court really won't like your mom out all night with her boyfriend." The next day his next questions was "Did you sleep with your Mom last night? Was anyone else there? What time did she come home?" He also told his 9 year old son that Mom was a tramp, a former stripper, and had had sex with over 200 men. To a 9 year old who doesn't know what sex even is.....nice.

He's called mother over 200 times in last month, as late as 2am. He put up a webpage with her name as the domain and put photos of her online. He sent her a text message with a photo taken from a video of them having sex he'd secretly recorded (did I mention the webpage has a video tab?). He keylogged 2 of her computers and sent extracts of her emails to her friends and family.

He's directly threated her, usually after losing a round in court. Threats have included "It would be a shame if you died.", "I'll do anything to get my son, if I have to kill you I will." She's now staying at my house (brother-in-law). He calls repeatedly at all hours of day/night. If she doesn't answer he "spoofs" his number so caller-id shows someone she'll answer (child's school, doctor, other adult children, etc).

Due to the threats and concern over how the 9 year old was acting following calls, she has started recording the calls between him and the child (which come in on her phone). He's promised the child every gift imaginable (including circus animals...no joke) and is demanding the child tell the judge and a psychologist that he wants to move back. He's constantly on the calls demeaning the mother and other family members. He told the child, "Don't tell your Mom or she'll stop me, but I'm going to surprise her tomorrow night and then bring you back here." The child was so afraid that he'd show up and hurt his mother that he cried and refused to speak to his father the next night. (Which of course sparked another 5 hours of harassing calls and abusive language.)

Father can visit here in GA but only with 15 days notice. He won't come here as he's a fugitive felon (4 arrest warrants here...) and awaiting trial on 15 more in FL. (These exclude the stalking charges mother has reported to police but are awaiting charges.)

Police here have told mother to record calls and they've been provided to law enforcement.

1. Under FL 934.03 does law enforcement telling mother to record the calls allow them to be used in court without his consent due to the statute exclusions?

2. Can she record calls between father and child due to his threats and her concern for the child? Is the law enforcement request enough or would this be vicarious consent? Is the family court going to have a big problem with this or will they consider the circumstances? Are the recordings admissible in family court?

3. If the recordings are inadmissible, can they be used by a court appointed psychologist who is evaluating the child for a parenting plan?

Your opinions and any supporting case law (FL) would be greatly appreciated.

 

[TinkerBelleLuvr]

Florida is an all parties must consent to being recorded. Is the child in counseling? If not, I suggest it. If the counselor feels the child is being harmed, they can do the mandated reporting to CPS.

 

[LdiJ]

Florida is an all parties must consent to being recorded. Is the child in counseling? If not, I suggest it. If the counselor feels the child is being harmed, they can do the mandated reporting to CPS.

I agree that FL is an all parties state, but the PD in GA is telling her to record the calls. Presumably due to possible future criminal actions against dad in GA.

She certainly cannot use the recordings in a court in FL for a custody case, but I think its possible that the PD in GA wants the recordings for another purpose.

 

[LdiJ]

OP....I am going to point out something else.

If dad has 4 fugitive warrents out for him in GA, and another 15 in FL, I honestly don't think that you have to worry about dad filing any court cases. However, if he does, then then somebody needs to be pointing out to the police that he will be in X court, at X date and time so that those warrants can be executed.

 

[CuriousInATL]

The child hasn't begun counseling yet, thus the part of my question regarding whether the recordings could be played for a counselor or child psychologist (court appointed or not). We'd of course like to get the recordings into evidence before the judge and considered by the psychologist.

Florida is a 2 party state....but there are exceptions. One of which is under the direction of law enforcement:

http://www.4dca.org/opinions/Mar 2010/03-17-10/4D08-4005.op.pdf

And another possibility would be notifying the non-custodial parent directly that all calls/communications are being recorded (now and in the future) and using vicarious consent for the minor child given by the custodial mother. I see a lot of case law supporting this in other jurisdictions but haven't found much for Florida.

Should add, GA isn't extraditing on the warrants here supposedly becaused they were filed in the Magistrate Court and they won't go beyond a 50 mile radius for Magistrate warrants. Sounding on the Florida charges is in Nov. Yes, the PD has advised her to record calls because of the threats and stalking behaviour. The PD is trying to determine the charges now. The exception to the Florida statute should allow her to introduce the calls directly to her into evidence even without 2 party consent since it's at the direction of law enforcement. The question then is whether the calls to the child (placed to her phone) are likewise admissible.

 

[acmb05]

Florida is an all parties must consent to being recorded. Is the child in counseling? If not, I suggest it. If the counselor feels the child is being harmed, they can do the mandated reporting to CPS.

Ga is a one party consent state. This would probably fall under Federal jurisdiction since it crosses from a one party to a two party state. Under no circumstances can you tape a phone call you are not a party to.

If the local police want you to record the conversations they should get a warrant for that and tap your phone themselves.

 

[CuriousInATL]

False/forged evidence submitted to the court

And I'll add an additional question:

In court he admitted that he'd placed a keylogger on her computer and was monitoring all emails including those to her attorney. He had all of her passwords.

When it came for him to return the child after his visitation, he refused claiming that she'd sent him an email saying he could have visitation for an extra 4 days. Turns out he'd hacked her email, changed the PW so she could access it, and sent himself an email from her account giving him the extra time. He then replied to her email accepting her offer.

If we can prove, beyond any doubt, that both emails were sent by him and then he introduced them as evidence in court what would be the violation? Is this civil (contempt of court) or criminal (some type of computer violation and/or forgery?) Is it a crime against the state/court or against the mother and who would initiate a charge?

 

[LdiJ]

And I'll add an additional question:

In court he admitted that he'd placed a keylogger on her computer and was monitoring all emails including those to her attorney. He had all of her passwords.

When it came for him to return the child after his visitation, he refused claiming that she'd sent him an email saying he could have visitation for an extra 4 days. Turns out he'd hacked her email, changed the PW so she could access it, and sent himself an email from her account giving him the extra time. He then replied to her email accepting her offer.

If we can prove, beyond any doubt, that both emails were sent by him and then he introduced them as evidence in court what would be the violation? Is this civil (contempt of court) or criminal (some type of computer violation and/or forgery?) Is it a crime against the state/court or against the mother and who would initiate a charge?

It would definitely be a cyber crime and could be punished accordingly.

I hope that she has had the keylogger removed from her computer and has changed all the passwords. In fact, she probably ought to simply buy a new computer.

 

[acmb05]

It would definitely be a cyber crime and could be punished accordingly.

I hope that she has had the keylogger removed from her computer and has changed all the passwords. In fact, she probably ought to simply buy a new computer.

I agree she needs to take it off but for about $125 you can have your computer cleaned of any infections such as this and restored back to original. No need to spend a bunch of money on a new computer.

They can also track the keylogger and find out how it was put on the system in the first place. This could easily lead back to him.

 

[CuriousInATL]

Regarding the 1 party vs 2 party state debate, it seems that:

Calls to her: Georgia is a 1 party state....she is recording her own calls. No problem using the calls in Georgia. Florida is a 2 party state, the calls would normally be inadmissible. She is, however, recording under the direction of law enforcement (see cite above) which should make her calls admissible even in the 2 party state of Florida per their exclusion in the statute. (The cite is very similar from a recording standpoint.)

Calls to her son: The calls come to her phone, she normally answers and hands the phone to her child. (Not sure if this matters...). The PD has advised her to record ALL calls from father. These calls seem a little more questionable. She doesn't want to interfere with his calls....but the threats are quite real and already we've had to take protective measures based solely on knowledge gained by these calls.

Interference with fathers calls would be bad....but so would getting shot by crazy father. Does father calling her phone to initiate the call prior to the phone handoff make her a party to the call? In Florida, can she vicariously consent and record for her minor child? (Consent of 1 party...using the PD request as the exclusion to avoid 2 party notification.)

Sorry if I'm being repetitive....just trying to be more clear.

 

[CuriousInATL]

I removed one keylogger by wiping her computer before thinking that we'd need it as evidence. (Stupid....stupid me). He's claiming that he had the right to keylog since it was a "family" computer. She says it was a gift no one used it but her. He did admit the keylogging in open court.

I then provided her a second computer that I owned. Damn if he didn't keylog that one also. He isn't aware that this was a new computer. I found in her emails 2 emails he'd sent her with subjects like "Legal documents for you to review." Both emails contained executable files with trojans/viruses. This is how he infected her computer remotely.

 

[acmb05]

I removed one keylogger by wiping her computer before thinking that we'd need it as evidence. (Stupid....stupid me). He's claiming that he had the right to keylog since it was a "family" computer. She says it was a gift no one used it but her. He did admit the keylogging in open court.

He is correct on this one.

I then provided her a second computer that I owned. Damn if he didn't keylog that one also. He isn't aware that this was a new computer. I found in her emails 2 emails he'd sent her with subjects like "Legal documents for you to review." Both emails contained executable files with trojans/viruses. This is how he infected her computer remotely.

Save all of those email with the trojans in them He can be prosecuted for those.

 

[stealth2]

What input has her ATTORNEY had on this matter?

 

[CuriousInATL]

Input from the attorney....
About $30k worth to date and probably only 1/2 thru. But this now spans 2 states and is far more complicated than a typical case for most family law practitioners.

 

[stealth2]

Input from the attorney....
About $30k worth to date and probably only 1/2 thru. But this now spans 2 states and is far more complicated than a typical case for most family law practitioners.

Yet you're willing to put this child's future in the hands of anonymous internet posters, over that of a licensed attorney who knows the details? THAT is brilliant.

Really, though - WHAT DID THE LAWYER SAY ABOUT MOM RECORDING DAD'S CONVERSATIONS WITH THE KID?

No, ya know.... Don't even answer. Tell Mom to please create her own account so that we can get information from a party to the case, instead of a legal stranger pretending to know something.

Thanks.