Can I record my co-parent in Delaware?

Two statutes, two answers

Most states have one recording rule. Delaware has two, and they do not match.

The wiretap law in chapter 24 of Title 11 is one-party. The privacy law in section 1335 is written as all-party. A parent reading only one of them gets half the picture.

The wiretap law

11 Del. C. 2402 makes unlawful interception a felony, with up to five years in prison and a fine of up to $10,000.

Subsection (c)(4) then allows a person to record a conversation they are part of, or where a party consented. The exemption ends if the purpose is criminal or tortious. A tortious act is a civil wrong, such as invasion of privacy.

The privacy law

11 Del. C. 1335(a)(4) makes it a crime to intercept a private message by telephone or other means "without the consent of all parties thereto". A violation of subsection (a)(4) is a class A misdemeanor.

On its face, that reads as an all-party rule for phone calls and other private communications.

How a court reconciled them

In United States v. Vespe (D. Del. 1975), a federal court considered the privacy law. It held that a person could record a conversation they were part of without the others' consent.

That is one federal trial court, from 1975. Delaware's own courts have not settled the conflict in a way parents can rely on. The Reporters Committee advises following the stricter law.

The cautious course

When two laws disagree, the safer choice is the one that satisfies both. In Delaware, that means getting everyone's consent before recording.

Saying clearly at the start of a call that you are recording is the practical version. If the other parent objects, stop and write a note instead.

Hidden devices

Section 1335 also covers installing a hidden recording device in a private place. A recorder in the other parent's home or car is the clear risk.

You are not a party to what it captures. Neither statute protects that, and federal law may apply too.

Your child's calls

A call between your child and the other parent is one you are not part of. Because you are not a party to that call, you cannot supply participant consent under either statute.

Some courts let a parent consent for a young child under Pollock v. Pollock. Delaware has not clearly settled this, and its statutes already conflict. Take advice first.

What to keep instead

Write events down the same day, with the clock time, the words in quotation marks and who was present. Neither statute applies to your own notes.

A call log for custody records keeps calls in order. A factual incident report covers single events. Take both to a Delaware family lawyer.

A Delaware custody note that satisfies both statutes

Delaware's two recording laws disagree. A written note is outside both. Write it the same day.

Print checklist

• Time it to the minuteNote the date and clock time you are writing, and the date and clock time of the event itself.
• Quote, don't summarisePut the words you actually heard inside quotation marks. Mark anything you are paraphrasing as a paraphrase.
• Name who else was thereList every adult and child present, and anyone within earshot who is not part of the family.
• Separate what your child saidRecord a child's words as reported speech, and never question a child again to sharpen a quote.
• Note any consent givenIf anyone agreed to a recording, write down who, what they said and when.
• Point at the corroborationName the message, receipt, school note or third party that supports the entry, and say where it is kept.

Is Delaware a one-party or two-party consent state?

Both statutes exist. 11 Del. C. 2402 is one-party, while 11 Del. C. 1335(a)(4) requires the consent of all parties to intercept a private message. The law is unsettled.

Can I record a call with my ex in Delaware?

A federal court in United States v. Vespe held a participant could record. Because Delaware's statutes conflict, getting everyone's consent is the cautious course.

What is the penalty for illegal recording in Delaware?

Violating the wiretap law is a felony with up to five years in prison. Violating the privacy law is generally a misdemeanor.

Can I put a recorder in my ex's house in Delaware?

Section 1335 covers hidden recording devices in private places, and you are not a party to what they capture. Do not do it without advice.

Can I record my child's calls with their other parent in Delaware?

That is a conversation you are not part of. Vicarious consent is not settled in Delaware, so take advice first.

Sources

This page describes Title 11 of the Delaware Code, sections 1335 and 2402, and the federal decision in United States v. Vespe. It explains the law and is not legal advice.

• 11 Del. C. 2402 — the wiretap law, felony penalty and the party exemption checked September 2026
• 11 Del. C. 1335 — violation of privacy, including the all-party rule for intercepted messages checked September 2026
• United States v. Vespe, 389 F. Supp. 1359 (D. Del. 1975) — a participant's recording under the privacy law checked September 2026
• Reporters Committee for Freedom of the Press — Delaware recording guide and the conflict between the statutes checked September 2026
• Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998) — the vicarious consent doctrine checked September 2026

Keep reading

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