Everyone has to agree
Washington is an all-party consent state for private conversations. Being one of the speakers does not give you permission.
That covers phone calls and in-person talks. If you live in Washington and the other parent lives in a one-party state, ask a lawyer before assuming the looser rule applies.
The statute's own words
The rule for in-person conversations is direct.
Private conversation, by any device electronic or otherwise designed to record or transmit such conversation regardless how the device is powered or actuated without first obtaining the consent of all the persons engaged in the conversation (RCW 9.73.030(1)(b)).
Phone calls have a matching rule in (1)(a). Both turn on whether the conversation is private.
The rule that makes secret recordings useless
This is the part that sets Washington apart. RCW 9.73.050 says information obtained in breach of the statute "shall be inadmissible in any civil or criminal case".
A parenting plan case is a civil case. A secret recording of a private call is usually not evidence your lawyer can use. It is evidence that you broke the law.
The lawful way to record: say so
Washington gives you a clear statutory route. Under RCW 9.73.030(3), consent is considered obtained when one person announces to all the other parties, in any reasonably effective manner, that the conversation is about to be recorded.
The announcement must be captured on the recording too. A parent might begin with "I am recording this call." Say it clearly enough for each person to hear. Do not rely on a vague reference, an unread message or the other person's silence to settle consent.
The threats exception
RCW 9.73.030(2) lets one party record some conversations without the others' consent. The list includes calls that "convey threats of extortion, blackmail, bodily harm, or other unlawful requests or demands". It also covers calls that come anonymously, repeatedly or at an extremely inconvenient hour.
This matters for parents facing threats. It does not cover rudeness, lateness or arguments about the schedule. Whether a call fits the list is a judgment a lawyer should make with you.
Parents do not get a pass
Washington's Supreme Court has applied this law to a parent. In State v. Christensen, 153 Wn.2d 186 (2004), a mother listened to her daughter's call through a cordless phone's speakerphone.
The court held the call was private and the speakerphone was a device designed to transmit. The evidence from it should not have been used. Do not assume that being a parent, or owning the phone, puts a call outside the statute.
The cost of breaking it
A violation of RCW 9.73.030 is a gross misdemeanor under RCW 9.73.080. It is a criminal offence and can create a criminal record.
The person recorded can also sue under RCW 9.73.060. They can claim actual damages, including for distress, but not less than $100 for each day of violation or $1,000, whichever is higher, plus legal fees. Add the inadmissibility rule, and a secret recording costs a lot and rarely helps you.
What to do instead
Write the event down the same day. Note the clock time, the words in quotation marks, and who else heard them.
A call log for custody records keeps calls and voicemails in order. Use a factual incident report for a single event. A dated note is not a recording, so the inadmissibility rule does not touch it.
A Washington parenting-plan note the court can actually read
In Washington a secret recording is usually inadmissible. A dated note is not, so write it the same day.
Build the evidence Washington lets you use
Casewell keeps your dated entries, the words you heard and the files behind them in one private place. Writing on the day of the event is what makes a record credible. Export a focused PDF of a date range for a Washington lawyer.
Is Washington a one-party or two-party consent state?
Washington is an all-party consent state for private conversations. RCW 9.73.030 needs the consent of everyone taking part, whether the conversation is by phone or in person.
Can a secret recording be used in a Washington custody case?
Generally no. RCW 9.73.050 makes information obtained in breach of the statute inadmissible in any civil or criminal case, with narrow exceptions.
Can I record my co-parent if I tell them first in Washington?
Yes, under the announcement rule in RCW 9.73.030(3). Consent is considered given when you announce the recording in a reasonably effective way, and the announcement must be recorded too.
Can I record threats from my ex in Washington?
RCW 9.73.030(2) lets one party record conversations that convey threats of bodily harm, extortion, blackmail or other unlawful demands. A lawyer should confirm whether a specific call fits.
What is the penalty for illegal recording in Washington?
A violation of RCW 9.73.030 is a gross misdemeanor. The person recorded can also sue for damages and legal fees.
Sources
This page quotes the Revised Code of Washington, chapter 9.73, from the Washington State Legislature's official site. It refers to the Washington Supreme Court's decision in State v. Christensen. It describes the statute and is not legal advice.
- RCW 9.73.030 โ all-party consent, the threats exception and the announcement rule checked
- RCW 9.73.050 โ unlawfully obtained information is inadmissible in civil and criminal cases checked
- RCW 9.73.060 โ civil damages for violations checked
- RCW 9.73.080 โ a violation is a gross misdemeanor checked
- State v. Christensen, 153 Wn.2d 186 (2004) โ a parent listening through a speakerphone checked