Evidence: Trial court wrongly admitted FaceTime recorded conversation

Where Va. Code § 8.01-420.2 prevents admission of a telephone conversation unless all parties consent, this prohibition applied to a FaceTime audio-video recorded conversation.

Background

During a divorce and custody trial, over mother’s objection, the circuit court admitted evidence of a FaceTime audio-video recorded conversation between father, mother and their children that father introduced.

FaceTime

This appeal requires the court to decide, in an issue of first impression, whether a FaceTime audio-video call falls within the meaning of a “telephone conversation” under Code § 8.01-420.2, which relevantly provides “[n]o mechanical recording, electronic or otherwise, of a telephone conversation shall be admitted into evidence in any civil proceeding unless (i) all parties to the conversation were aware the conversation was being recorded . . .  The parties’ knowledge of the recording pursuant to clause (i) shall be demonstrated by a declaration at the beginning of the recorded portion of the conversation to be admitted into evidence that the conversation is being recorded.”

The statute does not define the phrase “telephone conversation.” The circuit court distinguished between audio-only calls and audio calls that also include video, such as FaceTime. Yet the relevant definitions do not suggest that incorporating video in an audio call is incompatible with the definitions for telephone or conversation. Thus, the FaceTime audio-video call fits within the ordinary meaning of “telephone conversation.”

Common usage of the term “telephone” also supports the conclusion that a FaceTime call falls within the meaning of “telephone conversation.” In Virginia domestic relations cases, FaceTime and other audio-video calls are widely considered interchangeable with telephone calls. This aligns with practices in domestic relations cases across the United States. The frequent and interchangeable use of “telephone” and FaceTime in legal opinions indicates that “telephone” is commonly understood to encompass situations where FaceTime may also be applicable.

For the reasons stated, this court finds that the recording of the FaceTime audio-video call introduced into evidence was a “telephone conversation.” Mother argued at trial that “at no point in time was [mother] made aware that the recording was taking place.” Father presented no evidence that the mother or children were aware of the recording. Accordingly, the circuit court abused its discretion by admitting the recording in violation of Code § 8.01-420.2.

Harmless error

Father argues admission of the recording was, at most, harmless error because it was “merely ‘cumulative’ of other, undisputed evidence.” Father points to the court’s determination that mother denied father visitation and subjected their daughter to unnecessary medical examinations. However, the court’s letter opinion demonstrates that the FaceTime recording affected the court’s determination of custody.

The court found that “[b]oth parents are engaged in close relationships with both children, characterized by mutual love and respect,” but concluded that father is “more attuned to [the children’s] safety and protecting them from adult problems.” The court’s opinion letter references the FaceTime recording as a prime example of mother prioritizing her dispute with father over the well-being of her children. The court also relied in significant part on the video to support its determination that “father prioritizes the needs of his children.”

The letter opinion also suggests that the FaceTime recording affected the court’s assessment of other evidence. The court discussed mother’s “reluctance (if not outright refusal) to allow [father] visitation” during the pandemic until he supplied negative results on a COVID test. The court found that the actions, “standing by themselves, [could] be taken as vigilance.”

The court determined, however, that “placed in the context of the other behavior she has engaged in,” mother’s behavior “amount[ed] to unreasonably denying access to the children.” Thus this court cannot conclude that admission of the recording was harmless because it affected the court’s assessment of best interests of the children and the result reached.

Reversed and remanded.

Hassan v. Takacs, Record No. 1877-23-4, Oct. 21, 2025. CAV (unpublished opinion) (Chaney). From the Circuit Court of Prince William County (Horan). Monroe A. Windsor (Compton & Duling, L.C., on brief), for appellant. John L. Bauserman, Jr. (Demetrios C. Pikrallidas; Pikrallidas & Probasco, on brief), for appellee. VLW 025-7-301. 12 pp.