In our digital age, tape or voice-activated recorders are cheap, easy to use, and easy to hide.  But can you hide one in your spouse’s car or office to get evidence of cheating?  No!

In North Carolina, it is illegal to record a conversation without the knowledge and consent of at least one of the parties being recorded.  So you may record your own conversation with your spouse, because you have consented to the recording.  You may not, however, record the conversation of two unsuspecting, unconsenting parties.  Hiding that voice-activated recorder in the car could be a very costly violation of wiretapping statutes, plus any evidence of an affair couldn’t be used against your spouse anyway.

In addition to evidence of cheating, you might want to record your own conversations with your spouse to provide evidence of problems that occur during custody exchanges, or evidence of domestic violence.  Just remember that only conversations in which you are involved are fair game.

One Exception:  Vicarious Consent

There is one exception to this rule, which allows you to record conversations between your children and another party.  In certain situations, you may give consent on behalf of your children, but only when you are concerned about the safety of your children.

If, for example, you suspect that your spouse is abusing your children, you may record conversations between the children and your spouse.  You must be prepared, however, to defend the recording in court by showing that you had a legitimate reasonable fear for your children’s safety.  Your word or simple suspicion will not be enough — you need evidence to back up your fear.

Bottom line:  You can only use a recording device to record a conversation to which you are a party; it is illegal to record conversations of others without their consent.  In limited circumstances, it may be permissible to record the conversations of your children with others.