Ok so I am in TN and I had on argument with my ex husband while he was in the state of Florida? I recorded the call because TN is a one party consent state. Now I find out that I may have committed a Felony in the state of Florida because Florida is a two party consent state.
1) Is there any truth to this?
2) Can this recording be used as evidence in a child custody case?
From a technical standpoint, an interstate call requires compliance with three bodies of law: federal law (18 U.S.C. s. 2511), and the law of each state where the parties to the call are located (here, FL and TN). Florida is a two-party consent state, while the federal statute and Tennessee law both require only one-party consent.
Under Florida's wiretap statute (Fla. Stat. 934.01, et seq.), a Florida resident (your ex) would have standing to bring a claim in Florida for violation of the statute. Further, under the statute, an "interception" occurs where the words are uttered, not where they are recorded, so even if he was not a resident, if he was in Florida when he spoke to you over the phone and you record it, that would bring it under Florida's statute as well.
If the Florida statute was violated, it could be a third degree felony with a maximum penalty of 5 years in state prison (subject to some narrow exceptions defined in the statute). Additionally, the statute provides for civil remedies (actual damages, punitive damages, attorney's fees, etc.)
Also, the family court judge could rule the recording inadmissible.
Best practice is to obtain consent, first. You can let him know that you intend to record any telephone conversations you have together, and that by calling you or answering your call, he consents to the call being recorded (you would want that in writing, of course). Or, just communicate through email or text going forward.
Federal law trumps state law. An interstate phone call is governed by federal law and the law in which the recorder is in. If you were in Tennessee at the time you recorded, then you are subject to Tennessee law. If you were in Florida when you recorded the argument, then you would definitely be in trouble, criminally and civilly.
Some courts in two-party states have held that the recorder is held to the stricter two-party consent standard, even when the recorder is in a one-party state. So I would recommend NOT trying to use that recording in a child custody case. The judge probably would not admit it into evidence, and on top of that, would probably have some very harsh words for you.
As far as using the recording as evidence in family court
