If your State allows telephone conversations to be recorded, we suggest that you put every conversation with your ex on the record.
Recorded conversations can be valuable evidence of a spouse's misbehavior, inability to care for a child, or even criminal activity such as drug use. Recorded conversations can also be used to document oral agreements that you make with your ex, and may help pinpoint dates that certain activities or disputed events occurred on.
The most difficult and time-consuming part of using recorded conversations is the process of transcription, that is, making a written record of the conversation. A three-minute conversation may translate into twenty to thirty minutes of typing. Although time-consuming, this step is vital in order to use a recorded conversation as evidence. No judge (and few attorneys) have the patience to sit through an hour of tape, listening intently to what is said. Fast-forwarding back and forth on a tape to find a snippet of conversation (even an important snippet) makes you look unprepared and, in some cases, foolish. Follow these guidelines to make your transcriptions of recorded conversations more useable in court.
Always record a time and date on the tape. You can do this before you or they pick up the phone, or after they have hung up. State the time, date, and who the other party is clearly, such as "Today is December 19th, the time is 2:21 PM. I'm calling Janet to discuss the pickup time for our son Jeff." This will help immensely later on when you have hours of tape from dozens of conversations. Trying to remember on what day a particular conversation took place becomes practically impossible to do as time goes by. The brief note on the purpose of the call can help establish what the conversation was supposed to be about, regardless of what was actually discussed.
Start each written record with the same information: "12-19-1999, 2:21PM. Called Janet to discuss the pickup time for Jeff.". Make this "header" separate from the transcription that follows. Put it on a separate line or bold it, or both. This will make it easy for a judge or an attorney to quickly locate a specific conversation that you wish to have examined by the court.
If your tape recorder has an index or 'footage' counter, use it to make note of the approximate place on the tape that each call starts and stops. Don't forget to record the tape number; if you accumulate more than one tape, number them sequentially. Include this information in the transcription header. If your transcription is called into question (a distinct possibility), this will help you and the court locate specific passages on the tape more easily. Just a simple note is all that is needed, for example: "Tape #3, Start=394, End=422".
If there is a reference to some event or issue that isn't obvious and clear to everyone who may read the transcript, put an asterisk and a number by it (*2). Enter the explanation or clarification in a footnote with the same asterisk/number. For example: Your ex states that she and the child are "going to Bill's house (*1)", and you know that Bill deals drugs. Your footnote might read: "(*1) Bill is known to me to be a drug user and dealer, and Janet bought drugs from him on numerous occasions while we were still married." Do NOT state that she was "going over to Bill's to buy drugs" unless you can prove it (or unless she stated so on tape). Let the court draw their own conclusions from the record, and don't make accusations that aren't proveable.
You don't want a judge accidentally attributing your ex's comments to YOU (or vice-versa), so start each line with the name of the person speaking to avoid confusion later about who said what. For example:
Janet: "Jeff and I are going to run over to see Bill for a while tonight." Me: "Do you know what time you'll be back? I'd like to call and say goodnight to Jeff." Janet: "We'll be back late, so you won't be able to call him."
And so on. Make sure that whoever reads the transcript can tell exactly who said what. Here are a few other points to keep in mind:
Don't edit out anything- your goal is to make a complete and truthful record of what was said. If you make any "creative" edits and someone notices (like your ex's attorney), expect them to have a field day destroying your credibility. Lose your credibility and you will fare poorly in court, no matter how good a case you have. Again, your goal is to make a complete and truthful record, so include all the "um..." and "ah.." noises as well. Indicate any lengthy pauses by noting "[15 sec. pause]" or something similar.
Be consistent in your transcription and include notes to indicate things like external noise or unintelligible words. Use the same style throughout all your transcriptions. For example, "[kids screaming in background]", "[long pause]", "[unintelligible word]". Make a note if the call was from a car phone, pay phone, or home phone. (It's a good idea to get Caller ID so you can keep track of where calls come from. If, for example, she is calling from Bill's house, you won't know it unless she mentions it. With Caller ID, you'll not only know it, you'll have a record of the incoming call. Later you can use this to document her presence at a specific time and location. You'd be amazed at how useful this can be.)
Don't editorialize or make sarcastic notes in the transcription. This is NOT the place for it. Leave any commentary for your journal or your attorney, but DON'T put it anywhere in the transcript. If the judge or an attorney is reading your transcript and sees a note like "I think Janet is just being a goddamn bitch about this", it'll reflect poorly on YOU, not on her. Even worse, her attorney will use this written record that you prepared to show that you're "hostile", "angry", or that you "harbor a hatred" towards your ex, and that because of this, you won't cooperate in "promoting a relationship" between the child and the other parent. This is a sure-fire way to lose a custody battle, especially if you are the father.
Do not mention taping calls with your ex, and don't admit it to her. (As long as you are legally allowed to tape a call without two-party notification.) If your State requires that all parties be informed and you want to tape your calls, inform your ex at the outset "I'm going to tape this call so there are no misunderstandings about what was said." If she objects, you have two choices: 1) Turn off the tape recorder, or 2) Ask her why she objects. You may also simply state that you're going to tape the call, then immediately change the subject. At this point she has the choice to remain silent or hang up. When you change the subject, she may focus on that and never get around to objecting to the call being taped.
Calls to answering machines are fair game in every State in the country. The courts have taken the position that when you leave a message on an answering machine, you know it is being recorded, period. If your ex leaves a nasty or threatening message on your answering machine, you may use it in court without any restrictions. (Whether or not the court will listen to it is another story.)
If you live in a "one party" State (a State where only one person needs to know the conversation is being recorded), ALWAYS ASSUME YOU ARE BEING RECORDED. Never do or say anything on the phone that you wouldn't want played at full volume in a courtroom. To find out whether you're in a one- or two-party State, check the Practical Guide to Taping Conversations. This page lists the telephone-recording laws for all 50 States and the District of Columbia.