Lawful to make
Wisconsin needs the consent of one party to a conversation. If you are on the call, your consent is enough.
The exemption in Wis. Stat. 968.31(2)(c) has a condition. It ends if the recording is made to commit a criminal or tortious act, "or for the purpose of committing any other injurious act". Injurious is a wide word, so keep your purpose simple.
Hard to use
This is what sets Wisconsin apart. Wis. Stat. 885.365 deals with recorded telephone conversations.
Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state in civil actions, except as provided in ss. 968.28 to 968.37.
A divorce, custody or placement case is a civil action.
The State Bar reads it the same way
In its 2024 ethics opinion on recording, the State Bar of Wisconsin noted this plainly. One-party recording is not unlawful in Wisconsin, but the recordings are not admissible as evidence in civil cases.
So a secret recording of your co-parent's call is lawful to make but hard to use. Many parents only find that out at the hearing.
The exception: say so at the time
Section 885.365 has a way through. It does not apply where the recording is not made by interception and the person recorded "is informed at that time" of two things.
They must be told the conversation is being recorded. They must also be told that any evidence from it may be used in a court of law. A parent who wants a usable recording can say both at the start of the call. Ask a lawyer to check the wording first.
In-person conversations
Section 885.365 is about telephone conversations. In-person talk falls under the general wiretap law, which covers oral communications where the speaker has a justified expectation of privacy.
If you are part of the conversation, the one-party exemption generally applies. A recorder left in a room you are not in has no party's consent. That can be a Class H felony under Wis. Stat. 968.31(1).
Your child's calls
A call between your child and the other parent is one you are not part of. The party exemption does not reach it.
In State v. Duchow, the Wisconsin Court of Appeals applied a vicarious-consent analysis in a criminal case. The Wisconsin Supreme Court later reversed on other grounds and expressly declined to decide whether the statute permits parental vicarious consent. Even if a lawyer considers that theory, the civil evidence rule remains a separate hurdle.
What a Wisconsin court is weighing
Wisconsin decides legal custody and physical placement under the child's best interests. The factors include whether each parent will support the child's relationship with the other parent.
A recording that probably cannot be admitted, and that suggests you were building a file, can hurt more than help. A clear written record avoids both problems.
What to keep instead
Your written notes are not recordings, so Section 885.365 does not touch them. Write them the same day, with the clock time, the words in quotation marks and who was present.
A call log for custody records keeps calls and voicemails in order. A factual incident report covers single events. Take both to a Wisconsin family lawyer.
A Wisconsin placement note the court can actually use
In Wisconsin a secret call recording is usually inadmissible. A dated note is not, so write it the same day.
Keep the Wisconsin record you can actually use
Casewell keeps your dated entries, the words you heard and the files behind them in one private place. A note written on the day is stronger than a memory rebuilt later. Export a focused PDF for a Wisconsin lawyer when you need one.
Is Wisconsin a one-party consent state?
Yes. Wis. Stat. 968.31(2)(c) lets a party to a conversation record it, unless the purpose is criminal, tortious or otherwise injurious.
Can I use a recorded phone call in a Wisconsin custody case?
Usually not. Wis. Stat. 885.365 makes recorded telephone conversations inadmissible in civil actions. The exception is where the person was told at the time that the call was recorded and could be used in court.
How do I make a recording usable in Wisconsin?
Section 885.365 allows it where the person is told two things at the time. The conversation is being recorded, and it may be used in a court of law. Ask a lawyer to check your wording first.
What is the penalty for illegal recording in Wisconsin?
Unlawful interception under Wis. Stat. 968.31(1) is a Class H felony.
Can I record my child's calls with their other parent in Wisconsin?
That is a conversation you are not part of. The Court of Appeals considered vicarious consent in Duchow, but the Wisconsin Supreme Court later declined to decide the issue. The civil evidence rule still applies, so speak to a lawyer first.
Sources
This page quotes Wisconsin Statutes 968.31 and 885.365, and refers to State Bar of Wisconsin Formal Ethics Opinion EF-24-01 and State v. Duchow. It describes the law and is not legal advice. A Wisconsin lawyer should confirm how it applies to you.
- Wis. Stat. 968.31 โ interception prohibited, a Class H felony, and the party exemption in (2)(c) checked
- Wis. Stat. 885.365 โ recorded telephone conversations inadmissible in civil actions checked
- State Bar of Wisconsin Formal Ethics Opinion EF-24-01 โ recording others without disclosure or consent checked
- State v. Duchow, 2007 WI App 162, and 2008 WI 57 โ parental vicarious consent and the later reversal checked
- Bucher Law Group โ Wisconsin wiretap and civil-admissibility overview checked
- Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998) โ the vicarious consent doctrine checked
- 18 U.S.C. 2511(2)(d) โ the federal one-party consent floor and its criminal-or-tortious-purpose proviso checked