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In many custody matters between two parents, the Court will order that one or both parents is entitled to phone or video call contact with the minor child or children while they are in the care of the other parent. Depending on the specific circumstances of the case, the parent coordinating this call, the custodial parent, may be tempted to record these calls with the child, either to memorialize the statements the child is making, to show the other parent’s living conditions, to show the way the other parent speaks to the child, or for a myriad of other reasons. Under Nevada law, however, is it legal to do so?

NRS 200.650 addresses the “unauthorized, surreptitious intrusion of privacy by listening device” and states:

Except as otherwise provided in NRS 179.410 to 179.515, inclusive, and 704.195, a person shall not intrude upon the privacy of other persons by surreptitiously listening to, monitoring or recording, or attempting to listen to, monitor or record, by means of any mechanical, electronic or other listening device, any private conversation engaged in by the other persons, or disclose the existence, content, substance, purport, effect or meaning of any conversation so listened to, monitored or recorded, unless authorized to do so by one of the persons engaging in the conversation.

NRS 200.620 prohibits the “interception” of “wire communications” without the prior consent of one of the parties to the communication. NRS 179.430, however, defines “intercept” as “the aural acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device or of any sending or receiving equipment.”

If it can be argued that the recording of a video call with no audio does not constitute an “interception” as defined by Nevada law. Depending on the circumstances, if the parent coordinating this call could arguably be considered one of the people engaging in the conversation, and that parent “authorized” the recording, it may not be a violation of NRS 200.650. Video calls, however, sometimes record with no sound – the legal analysis may be different if a parent wishes to record a video call with sound, or to record a phone call between the child and the other parent.

The legality of the surreptitious – i.e., unknown to one of the people on the call – recording of a phone conversation with one party was discussed at length by the Nevada Supreme Court in Lane v. Allstate Ins. Co., 114 Nev. 1176, 969 P.2d 938 (1998). In Lane, Allstate alleged that Lane, a former employee suing Allstate for breach of contract, had illegally tape-recorded several phone conversations.

On appeal, the majority held that, based on the plain language of NRS 200.620, the statute applies for “any person,” there were no exceptions made for private parties, and that the legislature intended to “prohibit the taping of telephone conversations with the consent of only one party[.]” Id. at 1179, 940.

What is most interesting about the case, however, are the dissenting opinions. Justice Springer’s dissent noted that “[o]nly three members of this court can agree as to what the statute means” and that he “cannot agree with the majority that under Nevada law it is a crime for one party to a two-party telephone conversation to tape-record that conversation.” Id. at 1182, 942. He noted that the word “intercept” was key, because an interception “requires a third person.” Id. at 1183, 942. He stated that, in his opinion, “[i]t is not a violation of NRS 200.620 to tape-record a telephone conversation in which one is a participant[.]” Id. at 1185, 944.

Justice Rose also dissented. He stated that in 1985, the Nevada legislature modified the definition of “person” used in NRS 200.620 to include “public officials and law enforcement officers of the state and of a county of municipality or other political subdivision of the state.” Id. He stated that because of this modification, “it is very unclear as to whether NRS 200.620 and 200.650 were to apply to all individuals, including law enforcement, whether both sections were to apply to law enforcement only, or … whether NRS 200.620 applies only to law enforcement and NRS 200.650 applies to individuals.” Id. at 1186, 944. He concluded that the statute was ambiguous and that NRS 200.620 should only apply to public officials and law enforcement. Id. at 1187, 945.

It appears that this ambiguity has not gone unnoticed. In an analysis of each state’s laws on recording conversations done by Matthiesen, Wikert & Lehrer, S.C., they note, “Nevada has a one-party consent law, but Nevada’s Supreme Court has interpreted it as an all-party consent law.”

Would the recorded parent in this situation be able to claim they did not consent to being recorded, or that they had a reasonable expectation of privacy during the calls? Again, it depends. The recorded parent could be aware that the other parent has been recording video calls. Additionally, if the recorded parent sees the recording parent present in the room while the conversations are taking place, it may eliminate the reasonable expectation of privacy.

Interestingly, even if such calls are wrongfully, even illegally, recorded, they are not necessarily always inadmissible in court. In Abid v. Abid, 133 Nev. 770, 771, 406 P.3d 476, 478 (2017) Dad placed a recording device in the child’s backpack during the child’s custodial time with Mom. Neither the child nor Mom were aware of the device. Id. Dad tried to admit the recordings into evidence, and Mom objected and claimed Dad violated NRS 200.650. Id. The district court found Dad had likely violated NRS 200.650 and denied his motion to admit them, but the court did provide them to the court-appointed child evaluator. Id.

On appeal, the court stated that while there was a statutory provision authorizing a criminal defendant to move to suppress illegal recordings, “we find no analogous provision in the civil context.” Id. at 773, 479. Additionally, the appellate court stated that prohibiting the custody evaluator from considering the evidence would “do little” to effectuate the protection of Mom’s privacy because “the expert is already inquiring into private details of the relationship between parent and child.” Id.

Finally, the court noted that child custody proceedings are distinguishable from other civil suits, stating that “the interests of a nonlitigant child are at stake” and that prohibiting the consideration of that evidence is “hindering the expert’s inquiring into the child’s best interests.” Id. at 774, 479. The court concluded that “the potential deterrent effect of ignoring [Dad’s] evidence is outweighed by the State’s overwhelming interest in promoting and protecting the best interests of its children.” Id. (internal quotation marks and citations omitted).

As to the general admissibility of the videos, the court stated that there is “no per se rule of inadmissibility in this context” and that the court has discretion in child custody actions to determine whether to admit evidence, even evidence obtained in violation of NRS 200.650. Id. at 775, 480.

The court also noted that even evidence obtained in violation of the Fourth Amendment is admissible in child abuse/neglect cases because “the substantial social cost of ignoring children’s safety” exceeds “the minimal additional deterrence achieved by applying the exclusionary rule.” Id. at 775, 481 (internal quotation marks and citations omitted). The court concluded that a blanket rule that such recordings were inadmissible could “force the district court to close its eyes to relevant evidence and possibly place or leave a child in a dangerous living situation.” Id.

If you are going through a child custody legal action and are wondering what evidence you should be preserving, an experienced family law attorney can explain your rights and obligations under the law.

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