This question comes up from time to time, especially in divorce and custody cases. And the answer is, “it depends.”
Both Federal and state laws apply to secret recordings, and there can be both civil and criminal penalties for violations.
Federal law allows you to secretly record your phone conversation as long as one party “consents” – and since you’re the one secretly recording it, you certainly “consent.” Federal law is one-party consent.
The key question is what state law allows. Does the state law allow the recording with the “consent” of just one party (you), or do both parties to the conversation have to consent?
Maryland is a two-party consent state. This means both (all) parties to a conversation must consent to the recording. If not, it will be illegal for a person to secretly record the phone conversation if they “know” they’re breaking the law.
The District of Columbia, however, is a one-party consent jurisdiction. You can legally record your phone conversation with someone else without their consent. Virginia is also a one-party consent state.
BUT…be careful. If people are in two different jurisdictions, you will want to follow the law of the more restrictive state. This means if you’re in D.C. or Virginia and calling someone in Maryland, you should not secretly record their phone call without their consent, because Maryland law doesn’t allow it, even though D.C. and Virginia do. And if you're in Maryland, forget it.
Even if the recording isn’t illegal, that doesn’t mean a Judge will necessarily view recordings favorably. Absent some compelling reason (e.g. to have proof of verbal abuse, threats or criminal activity), a Judge may very well question the character of a person who secretly records all conversations with their former spouse or partner.
Before recording, it’s best to get legal counsel to protect yourself and get the evidence you need in a way that can be used in court and makes you look good.
Dedicated to protecting and advancing your rights,
Rick Lundin