Can I Record My Ex — or My Child’s Phone Calls — in a New York Custody Case?

By Pieter G. Weinrieb, Esq. · Divorce & family law attorney, Williamsville, NY · Updated July 17, 2026

The One-Party Consent Rule

New York’s eavesdropping law (Penal Law §§ 250.00 and 250.05) makes it a felony to record or intercept a conversation without the consent of at least one party to it. The flip side: if you are a party to the conversation, you are that one consenting party. You can lawfully record your own phone calls and face-to-face conversations with your ex without telling them.

What you cannot do is record conversations you are not part of. Planting a recorder in your ex’s house or car, tapping their phone, logging into their accounts, or leaving a device running in your child’s backpack to capture the other household — that is eavesdropping, and it is a crime, not a discovery strategy.

Recording Your Child’s Conversations: The Vicarious Consent Exception

Parents ask about this constantly: “Can I record my child’s calls with my ex?” New York’s highest court answered in People v. Badalamenti (2016), adopting the doctrine of vicarious consent. A parent may record a minor child’s conversation only when the parent has a good-faith belief, objectively reasonable at the time, that recording is necessary to serve the child’s best interests — in that case, protecting the child from threatened harm.

Notice how narrow that is. It is a protection doctrine, not a surveillance license. Routinely taping every exchange with the other household because you might catch something useful is exactly what the doctrine does not cover — and a judge who concludes you’ve been running surveillance through your child will hold it against you, hard.

Legal Isn’t the Same as Helpful

Here is the part most people don’t hear until they’re in my office. In twenty-plus years of custody work, I have seen recordings help a case a handful of times — genuine threats, admissions of abuse, drunken tirades during exchanges. I have seen them backfire far more often.

Think about what a recording actually shows a judge: that you were building a case during moments your ex thought were private, sometimes for months. If the content is explosive, it may be worth it. If the content is your ex being unpleasant — which is most recordings — you have proven only that you surveil the other parent. Judges in custody cases are evaluating whether each parent can foster a relationship between the child and the other parent. A phone full of gotcha recordings answers that question badly.

What About Texts, Emails, and the Parenting App?

Written communication is different — and better. Your ex’s texts and emails to you are yours to keep and use, no consent questions at all. This is one reason attorneys push high-conflict cases onto court-ordered parenting apps: everything is timestamped, unalterable, and admissible without drama. If you feel you need evidence of how your ex communicates, move the communication somewhere that documents itself. (What your ex posts publicly is fair game too — see our guide to social media in a New York divorce.)

Mistakes I See Parents Make

Recording exchanges on your phone while narrating (“it’s 6:02 and she’s late again”) with the children standing right there. Coaching a child to get the other parent talking on tape — if the child’s attorney learns of it, and they usually do, the damage to your case is severe. Sharing recordings with the children, with new partners, or on social media. And the big one: secretly recording a conversation with an attorney, a therapist, or a court-appointed evaluator. Don’t.

A Western New York Note

If you genuinely believe your child is at risk in the other household, a recording is not the remedy — a court order is. In Erie and Niagara County you can seek relief quickly, sometimes the same day, by order to show cause. Talk to a Buffalo custody attorney about emergency custody instead of trying to build a surveillance file first.

Frequently Asked Questions

Is New York a one-party consent state for recording?

Yes. Under New York Penal Law §§ 250.00 and 250.05, recording a conversation is lawful if at least one party consents — and you count as that party in your own conversations. Recording conversations you are not part of is the crime of eavesdropping.

Can I legally record my child's phone calls with my ex in New York?

Only narrowly. Under People v. Badalamenti (2016), a parent may record a minor child’s conversation when the parent has a good-faith, objectively reasonable belief that recording is necessary to protect the child’s best interests. Routine surveillance of the other parent does not qualify.

Will a secret recording of my ex be admissible in a New York custody case?

A lawfully made one-party consent recording can be admissible, subject to the usual evidence rules. But admissible is not the same as helpful — judges often view extensive secret recording as evidence of conflict and surveillance rather than good parenting.

Can I put a GPS tracker on my ex's car or read their phone?

No. Tracking a vehicle you don’t own, accessing your ex’s phone or accounts without permission, or installing spyware can violate New York criminal law and will poison your credibility in a custody case. Get evidence through your attorney and formal discovery instead.

Related Questions & Resources

• Social Media & Divorce in New York
• Can a court make my ex communicate through a parenting app?
• Emergency Custody by Order to Show Cause
• Can my ex get my therapy records in a custody case?
• High-Conflict Divorce

This page is general information about New York law, not legal advice for your situation. Every family is different — if this question is live in your life, talk to a family law attorney before you act.