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Secret Recordings Are Admissible When Used for Domestic Violence Restraining Orders

Recordings made by one party without the other party’s knowledge are admissable in court and cannot be excludabled under Penal Code Section 632(d) if intended to obtain evidence for a Domestic Violence Restraining Order (DVRO).

Many people know that in California recordings made without the other party’s knowledge or consent are generally inadmissable in court. Several statutes address the admissibility of surreptitious recordings. Under Penal Code 632(d), such recordings are generally inadmissible, reinforced by Family Code Section 2022(a). However, Penal Code 633.6(b) provides an exception for recordings made by someone “seeking” a DVRO, if they reasonably believe the recordings may contain evidence relevant to the restraining order.

What does “seeking” a restraining order mean in the context of secret recordings?

A recent case addresses this issue: In April of 2024 in the case B.R.C v. B.E.C. (2024) ___ Cal. App. 5th ___ (the case is so new I do not have the precise citation) the Court found Husband engaged in verbal abuse towards the wife, witnessed by their children. He called her profane, derogatory names regularly and  had thrown things, sometimes at her. The trial court admitted three surreptitious recordings wife made of these incidents. The court found that the husband’s behavior disturbed wife’s peace, placed her in apprehension of serious bodily injury, and issued a DVRO.

The husband appealed.  The crux of his argument was that the trial court erred by admitting three recordings into evidence that were surrepticiously recorded. The  appellate court held that the exception under PC 632.6(b) for recordings made by someone “seeking” a DVRO does not necessitate filing a request for the order but turns on the individual’s intent when making the recording.  The crucial question is whether the recordings were made “for the purpose of providing evidence to the court.”   Although evidence of intention was sparse in this case, it was sufficient to establish intent. And, there was enough evidence to support the trial court’s finding of abuse.

Takeaways for Parties to Domestic Violence Restraining Order Matters: For the Moving Party: at the hearing on the domestic violence restraining order the person seeking the restraining order must give specific, truthful testimony regarding the intention to obtain evidence. The person against whom the domestic violence restraining order is sought will be limited to questioning the credibility of such testimony and whether the petitioner reasonably believed the recordings would provide evidence.  A person suffering from domestic violence can use secretly recorded audio or video evidence to prove their case for a domestic violence protective order. For the Defending Party: While the court did not address it I bet this may cut both ways. If a party feels their partner is “setting them up” for a DVRO, if they have evidence including secret recordings showing the party seeking protection is falsely accusing that party, that evidence if prepared to show the allegations are false would also be admitted.

Galen Gentry assists clients in Los Angeles and Southern California with divorce issues and explains the person’s rights and obligations in a divorce. Mr. Gentry has 30 years of experience and can help people to protect their interests. Call at (310) 282-7521 or contact us online by using the Orange form on the right of your screen to schedule a free consultation.