Can I record my co-parent in South Dakota?

Your own conversations

South Dakota's statute is framed around consent. A recording is an offense when no sender, receiver, or party has agreed.

When you are on the call, you are the receiver or sender. So recording your own call with the other parent is generally lawful. You do not have to announce it.

The statute's structure

SDCL 23A-35A-20 is worded in an unusual way. It lists who commits a Class 5 felony by using an eavesdropping device without consent.

For calls, the consent must come from "either a sender or receiver". For conversations, it must come from "a party to the conversation or discussion". The South Dakota Supreme Court has confirmed that one participant's consent is enough.

No purpose condition in the text

Many one-party states end the exemption if the recording is made for a criminal or tortious purpose. South Dakota's section 23A-35A-20 does not say that.

Federal law does, though, and it applies in every state. So recording to threaten, shame or pressure the other parent is still risky.

What sits outside it

Recording a conversation you are not part of, with no party's consent, is a Class 5 felony. The usual examples are a device hidden in the other parent's car, or spyware on their phone.

Section 23A-35A-20 does not set out a civil damages claim. Federal law does, with a minimum of $10,000 or $100 a day of violation.

In-person conversations

South Dakota protects oral communications where the speaker expects privacy. A quiet talk in a kitchen will usually qualify.

A shouted exchange at a busy gas station may not. If you are part of the conversation, the one-party rule is the simpler footing.

Your child's calls

A call between your child and the other parent is one you are not part of. The sender-or-receiver rule does not cover you.

Some courts let a parent consent for a young child under Pollock v. Pollock. That needs a genuine, reasonable belief that recording is necessary for the child's welfare. South Dakota has not clearly settled this, so take advice first.

What a South Dakota court is weighing

South Dakota decides custody on the child's best interests. Judges look at each parent's fitness and how well they cooperate.

A recording can be lawful and still suggest a parent building a case. A clear written record makes the same point without that risk.

What to keep instead

Write events down the same day, with the clock time, the words in quotation marks and who was present.

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

A South Dakota custody note, written the same day

South Dakota lets you record your own calls, but a dated note is what a court can follow. 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 the distance involvedIf the handover involved a long drive, note the meeting point and how long each parent travelled.
• Point at the corroborationName the message, receipt, school note or third party that supports the entry, and say where it is kept.

Is South Dakota a one-party consent state?

Yes. SDCL 23A-35A-20 only makes recording an offense where no sender, receiver, or party to the conversation has consented.

What is the penalty for illegal recording in South Dakota?

Recording by eavesdropping device without a party's consent is a Class 5 felony under SDCL 23A-35A-20.

Can my ex sue me for recording them in South Dakota?

Section 23A-35A-20 does not set out a civil damages claim. Federal law does, where a recording breaks the federal wiretap statute.

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

That is a conversation you are not part of. Vicarious consent is not clearly settled in South Dakota, so speak to a lawyer first.

Do I have to tell my co-parent I am recording in South Dakota?

Not when you are one of the people talking. Whether it helps your case is a separate question.

Sources

This page quotes South Dakota Codified Laws 23A-35A-20 from the South Dakota Legislature's official site. It explains the law and is not legal advice.

• SDCL 23A-35A-20 — eavesdropping device without a sender's, receiver's or party's consent, a Class 5 felony checked September 2026
• Reporters Committee for Freedom of the Press — South Dakota recording guide and State v. Braddock checked September 2026
• 18 U.S.C. 2511(2)(d) — the federal one-party consent floor and its criminal-or-tortious-purpose proviso checked September 2026
• Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998) — the vicarious consent doctrine checked September 2026

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