General legal information, published for everyone. It does not apply the law to anyone’s particular situation and is not legal advice. Laws change and differ by place; check the primary sources below.
Quick summary
- Federal law and most states allow recording when at least one party to the conversation consents (one-party consent). Roughly a dozen states require every party to consent in some or all situations.
- The rules depend on whether the person recording is a participant. Recording a conversation one is not part of, or leaving a recorder to capture others, is much riskier and often unlawful.
- For calls between people in different states, the stricter state's law may be applied, so a call with a relative in an all-party-consent state can carry more risk.
- Parents may be able to consent for minor children in limited circumstances, but recordings made to harass, or inside private spaces, can create liability.
- Unlawfully intercepted communications generally cannot be used as evidence, and sharing a lawful recording publicly can create separate privacy and defamation risks.
What it means
Recording rules are about consent. They decide whether a person who records a call, voicemail, or in-person conversation with a family member has committed an offense or exposed themselves to a lawsuit. The same rules apply whether the other person is a spouse, a parent, a child, or a stranger.
People record family conversations for many reasons: documenting threats, keeping a record of agreements in a custody dispute, preserving an elderly parent's instructions, or catching a relative in a lie. Whether a recording is lawful, and whether it can be used afterward, depends on who was part of the conversation, where the participants were, and the state.
A separate guide in the library covers recording phone calls and conversations in general. This guide focuses on the issues that come up inside families.
Key terms
- One-party consent
- A rule that allows a person to record a conversation if that person, or at least one participant, consents. Federal law and most states follow it.
- All-party (two-party) consent
- A rule that requires every participant to consent to a recording, at least for private conversations. About a dozen states use some form of it.
- Oral communication
- Speech made with an expectation that it is not being recorded, which is protected under the Wiretap Act and similar state laws.
- Participant vs. non-participant
- A participant is a person who is part of the conversation. A non-participant who secretly records it is an eavesdropper, which is generally unlawful without a party's consent.
- Vicarious consent
- A parent's consent on behalf of a minor child to the recording of the child's communications, recognized by some courts when the parent has a good-faith, objectively reasonable basis, such as concern for the child's welfare.
- Suppression
- A court ruling that evidence cannot be used because it was unlawfully obtained.
How the law works
The federal baseline: one-party consent
Under the federal Wiretap Act, it is not unlawful for a person to intercept a wire, oral, or electronic communication if that person is a party to it or one of the parties has given prior consent, unless the purpose is to commit a crime or a tort (18 U.S.C. § 2511(2)(d)). A person who records a call with a relative, as a participant, is therefore generally within federal law. A person who secretly records a conversation between two other family members, without either of their consent, is not.
State laws: one-party and all-party states
Most states follow one-party consent. Roughly a dozen require the consent of all parties in some or all circumstances. Examples include California (Cal. Penal Code §§ 632, 632.7), Florida (Fla. Stat. § 934.03), Illinois (720 ILCS 5/14-2, for private conversations), Maryland (Md. Code, Cts. & Jud. Proc. § 10-402), Massachusetts (Mass. Gen. Laws ch. 272, § 99), Montana (Mont. Code Ann. § 45-8-213), New Hampshire (N.H. Rev. Stat. § 570-A:2), Pennsylvania (18 Pa. Cons. Stat. § 5704), and Washington (RCW 9.73.030). Some of these apply only to conversations where the participants had a reasonable expectation of privacy, and details differ, so the specific statute matters. State penalties can include criminal charges and civil damages.
Calls that cross state lines
When relatives are in different states, it is not always clear whose law governs. Some courts have applied the stricter state's rule. In Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006), the California Supreme Court held that California's all-party rule could apply to a business that recorded calls from outside the state to California callers. The safe approach commonly described is to follow the strictest rule that could apply, which in practice means telling the other person that the call is being recorded when any participant is in an all-party state.
Spouses and partners
Participating in a call or conversation and recording it is treated under the same rules as for anyone else. Recording a spouse's calls with third parties, or leaving a recorder in the home to capture conversations the recorder is not part of, is a different matter and is the central fact pattern in the cases on whether the Wiretap Act has an unwritten spousal exception. Most federal appeals courts have said it does not (for example, Heggy v. Heggy, 944 F.2d 1537 (10th Cir. 1991), and Glazner v. Glazner, 347 F.3d 1212 (11th Cir. 2003) (en banc)), though some older decisions went the other way. State laws on eavesdropping and recording apply on their own terms.
Parents and children
A parent who is a party to a conversation with a child may record it under the same rules as anyone else. Courts have also recognized that a parent can, in limited circumstances, consent for a minor child to the recording of the child's calls with others, based on good-faith concern for the child's welfare (Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998)). That doctrine is not accepted in every jurisdiction, depends on the facts and the child's age, and does not cover recordings made to harass or to capture intimate or private activity. A parent recording the other parent's calls with the child, or a child's conversations at the other parent's home, can create legal problems and can reflect badly in custody proceedings.
Older relatives, caregivers, and household devices
Recording conversations with an older relative, for example to document instructions about money or medical care, follows the same consent rules, and consent from a person with diminished capacity may be questioned later. Cameras and smart-home devices that record audio can capture conversations among family members who are unaware of them; those conversations may be protected oral communications. Notice and consent from household members, and keeping devices out of private rooms, reduces risk. Some states also have laws on recording in nursing facilities.
Using recordings in court
Federal law bars the use of unlawfully intercepted wire or oral communications as evidence in any court proceeding (18 U.S.C. § 2515), and many states have comparable rules. A recording lawfully made by a participant can still face evidence objections, such as authenticity, relevance, and completeness. In divorce, custody, and protective-order cases, judges also consider why a recording was made and whether it was edited, and a pattern of secretly recording a family member can itself be held against the person who made the recordings.
Sharing or publishing recordings
Making a lawful recording and sharing it are separate acts. The Wiretap Act and state laws also restrict disclosing the contents of unlawfully intercepted communications. Even a lawful recording can lead to claims for invasion of privacy, public disclosure of private facts, or defamation if it is posted online or sent to others, particularly if it contains private or sensitive information about a relative.
Examples
Hypothetical example
Recording a threatening call from a sibling
A person in a one-party-consent state records a phone call from a sibling who threatens them. As a participant, the person is generally within federal and state law and the recording may be useful evidence, although if the sibling is in an all-party-consent state, the stricter rule may need to be considered.
Hypothetical example
A recorder left in the family room
One spouse leaves a voice recorder running in the family room while out, to capture what the other spouse says on calls. Because the recording spouse is not a participant and neither party consented, this can be unlawful interception under federal and state law, and the recording may be unusable in the divorce.
Hypothetical example
Recording exchanges at a custody handoff
Separated parents record the in-person handoff of their child in a public place, saying so at the start. The recording is made openly, with notice, and generally presents fewer consent problems than secret recording, though local rules and the setting still matter.
Common questions
Can one spouse secretly record a phone call with the other spouse?
In a one-party-consent state, a spouse who is on the call can generally record it. In an all-party-consent state, secret recording of a private call can be unlawful. Recording the other spouse's calls with third parties, as a non-participant, is generally unlawful.
Can a recording made in secret be used in a custody case?
It depends on the state and how the recording was made. Unlawfully intercepted recordings can be excluded, and even lawful recordings are weighed by the judge for context. Some courts view a parent's covert recording of a child or the other parent unfavorably.
Is it legal to record an adult parent who has dementia?
Consent rules still apply. A participant may record in one-party states, but a recording of someone who lacks capacity may be challenged later, and a legal decision-maker's authority is limited to the scope of their appointment.
What if the call involves people in different states?
The stricter state's rule may apply, so when any participant is in an all-party-consent state, announcing the recording or getting consent at the start is the commonly described way to reduce risk.
Can recordings be posted on social media?
Lawfully made recordings can still lead to privacy or defamation claims if posted, and recordings that were unlawfully intercepted cannot be disclosed or used under federal law.
Important distinctions
Recording as a participant vs. eavesdropping
A participant recording a conversation with one-party consent is generally lawful. Placing a recorder to capture other people's conversations, or recording a call one is not on, is eavesdropping and generally unlawful.
One-party vs. all-party consent
In one-party states, the recorder's own consent is enough. In all-party states, every participant must agree, at least for private conversations, and announcing the recording is the usual way to obtain it.
Lawful to make vs. lawful to use or share
A recording can be lawful to make but excluded from evidence for other reasons, or lawful to use but risky to publish. Making, using, and sharing a recording are evaluated separately.
Primary sources
- Statute18 U.S.C. § 2511Wiretap Act — interception and disclosure; one-party consent at (2)(d)United States (federal)
- Statute18 U.S.C. § 2515Prohibition of use as evidence of intercepted communicationsUnited States (federal)
- Statute18 U.S.C. § 2520Recovery of civil damagesUnited States (federal)
- CasePollock v. Pollock, 154 F.3d 601 (6th Cir. 1998)United States (federal)Vicarious parental consent to recording a minor child's calls.
- CaseHeggy v. Heggy, 944 F.2d 1537 (10th Cir. 1991)United States (federal)No interspousal exception to the Wiretap Act.
- CaseGlazner v. Glazner, 347 F.3d 1212 (11th Cir. 2003) (en banc)United States (federal)Whether the Wiretap Act contains an interspousal exception.
- CaseKearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95 (2006)CaliforniaApplication of California's all-party recording rule to calls placed from another state.
- StatuteCal. Penal Code §§ 632, 632.7Recording confidential communicationsCaliforniaAn example of an all-party-consent statute.
- StatuteFla. Stat. § 934.03Interception and disclosure of communicationsFloridaAn example of an all-party-consent statute.
- Statute18 Pa. Cons. Stat. § 5704Exceptions to prohibition of interceptionPennsylvaniaAn example of an all-party-consent statute.
- StatuteRCW 9.73.030Intercepting, recording, or divulging private communicationWashingtonAn example of an all-party-consent statute.
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- Last updated
- Oct 30, 2026
- Jurisdiction
- United States — federal and state law
- Written by
- House Legal editorial (AI-assisted)