Virginia’s One-Party Consent Law: When Recording Conversations Becomes Legal - And When It Doesn’t

Virginia law allows individuals to record conversations they participate in, but prohibits recording conversations among others without consent.

Introduction

Virginia’s one-party consent rule determines when recording complex interactions is lawful.

     In moments of conflict - whether in a custody dispute, divorce proceeding, or tense conversation -many Virginians wonder if they can legally record an exchange to protect themselves or gather evidence. The answer depends on Virginia’s “one-party consent” rule, which governs how and when conversations may be lawfully recorded. While Virginia law permits specific recordings, others can lead to criminal penalties or inadmissible evidence. Understanding the distinction is essential before pressing “record.”

Case Background

Even lawful recordings may be excluded from court if they cause harm, raise privacy concerns, or appear manipulative, and intent heavily influences how courts assess them.

     Under Virginia Code § 19.2-62, Virginia is a one-party consent state. This means that as long as one participant in the conversation (often the person doing the recording) consents to the recording, it is legal. In other words, you can record a conversation that you are part of without informing the other party. However, secretly recording other people’s conversations when you are not a participant violates state wiretapping laws and may constitute a Class 1 misdemeanor. The law applies to both in-person and electronic communications, including phone calls and video conferences. It does not apply to public settings where there is no reasonable expectation of privacy, such as public meetings or open spaces. Still, the legality of making a recording does not guarantee that it will be admitted as evidence in court, especially in sensitive family law matters.

Legal Analysis

Recordings can strengthen or undermine a family law case, making it crucial to evaluate participation, motive, and potential consequences before pressing “record.”

     Courts in Virginia distinguish between the legality of recording and the admissibility of those recordings. A recording that complies with one-party consent may still be excluded from evidence if it causes undue harm, invades privacy, or lacks relevance. For example, a parent who records a visitation exchange in front of distressed children may find that the emotional impact outweighs any evidentiary value, potentially harming rather than helping their custody case. Supplementing this, practitioners emphasize that audio and video recordings are treated differently. While a homeowner’s video surveillance (like a doorbell or security camera) is generally permissible, recording audio without consent can violate the statute.

     The intent behind the recording also matters: a person who records to protect themselves from abuse is viewed differently than one who records to gain leverage in litigation. Virginia’s one-party consent statute allows recordings when you are a participant - for example, saving an abusive voicemail, recording a threatening call, or documenting a workplace meeting you attend. However, it prohibits placing a hidden device to intercept others’ communications, with violations potentially resulting in criminal prosecution and civil damages of up to $100 per day or $1,000 (whichever is greater).

Implications

Smith Strong advises clients on when recording is legal, strategic, and appropriate under Virginia’s one-party consent framework.

     For individuals navigating divorce, custody disputes, or protective order hearings, recordings can play a decisive but double-edged role. A properly obtained recording may corroborate testimony or expose misconduct. Yet an ill-advised recording, especially one that captures minors or was made in violation of the statute, can jeopardize credibility and raise additional legal issues.

Before recording, Virginians should ask three questions:
     1. Am I part of this conversation? If not, the recording is likely illegal.
     2. Why am I recording? Courts consider motive and potential harm when evaluating evidence.
     3. Could this backfire? Even a lawful recording may alienate judges or juries if it appears manipulative or invasive.
Because every case is unique, consulting counsel before recording is the best way to ensure compliance with both the letter and spirit of Virginia’s law.

Smith Strong Can Help

At Smith Strong, PLC, our attorneys advise clients across Virginia on how to protect themselves within the bounds of the law. Whether you are considering recording an interaction related to a custody dispute, a protective order, or a potential criminal allegation, our team can help you evaluate the legal
risks and strategic value of doing so. Call our Richmond office at (804) 325-1245 or in Williamsburg at (757) 941-4298 to schedule a confidential consultation.