Recording Law for Family Law in Wisconsin

In Wisconsin, you can legally record any conversation you are part of without telling the other person. This is because Wisconsin is a one-party consent state under Wis. Stat. § 968.31. The law allows interception of a wire, electronic, or oral communication where the person is a party to the communication or one of the parties to the communication has given prior consent to the interception (Wis. Stat. § 968.31(2)(b)-(c)). Wisconsin Statutes § 968.31 makes it a crime to intercept these communications without meeting this rule. The same one-party consent applies whether the conversation is in person, over the phone, or through an app or text. If you’re part of the discussion, you can record it without informing the other person. Recording someone else’s conversation without consent is unlawful under this statute unless the recorder is a party to the communication or one of the parties has given prior consent.

Wisconsin law does not restrict silent video-only recording. The state’s wiretap statute, Wis. Stat. § 968.31, only covers the interception of the contents of wire, electronic, or oral communications. If you record video without capturing the audio, you’re not intercepting the contents of a conversation as defined by the statute. Wisconsin Statutes § 942.08(2) restricts using a surveillance device in a private place to observe someone nude or partially nude, but that narrow exception is limited to voyeuristic conduct and does not apply to general video recording of disputes, altercations, or police interactions. For most family or custody disputes, silent video recording is not restricted by these laws.

Federal courts covering Wisconsin protect your right to openly make an audio or audiovisual recording of on-duty police performing their duties in public. The controlling Seventh Circuit precedent is ACLU of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012), which held that openly making an audio or audiovisual recording of on-duty police performing their duties in public is protected First Amendment activity, and enjoined enforcement of an all-party-consent eavesdropping law against such recording. Wisconsin is in the Seventh Circuit, so this precedent applies here. You can record police interactions in public without their knowledge, as long as you don’t interfere with their work. This First Amendment protection operates alongside Wisconsin’s one-party consent rule: when the recorder is a participant in the exchange, the recording is lawful under state law, and when the recorder is a bystander, the First Amendment analysis under Alvarez provides additional protection for recording on-duty police in public.

Interception is unlawful if done for a criminal or tortious purpose, even if you’re a party to the communication. Wisconsin Statutes § 968.31(2)(c) provides that interception is unlawful if done "for the purpose of committing any criminal or tortious act." Penalties for violating this law are serious: a violation of § 968.31 is a Class H felony under Wis. Stat. § 939.50(3)(h), punishable by up to six years in prison and a fine up to $10,000. You can also face a civil lawsuit for damages under § 968.31(2m), including actual damages of at least $100 per day or $1,000 (whichever is greater), punitive damages, and attorney’s fees. These penalties apply whether the recording is audio, video, or both, and they also apply to silent video-only recording that otherwise violates § 942.08(2).

Wisconsin’s wiretap statute has no distinct, stricter statutory carve-out specifically for recording inside one’s own home. The same one-party-consent / reasonable-expectation-of-privacy framework under § 968.31 and § 968.27(12) governs everywhere, home or not. If the wearer is a participant in a conversation occurring in their own home, one-party consent applies just as it would elsewhere. Recording someone else’s conversation in a location (including a home) where a nonparticipant has no consent and the parties reasonably expect privacy could still trigger liability under § 968.31 (location is simply one factor in the Duchow reasonable-expectation analysis, not a categorical home/away rule). Separately, § 942.08(2)(a) (invasion of privacy) has heightened, location-based force in homes/private places, but again only reaches installing/using a surveillance device to observe nude or partially nude persons without consent — not general dispute/incident recording. Confidence on this point is medium-high: I found no Wisconsin appellate decision creating a home-specific carve-out or aggravation distinct from the general framework, so this is a reasoned reading of the statutory text rather than a directly on-point case.

Imagine you’re picking up your child at a public park for a scheduled custody exchange. Your co-parent becomes angry and raises their voice. You pull out your phone and start recording the conversation. Under Wisconsin law, this is lawful because you’re a party to the communication and Wisconsin’s one-party consent rule applies. The recording is allowed even though your co-parent didn’t know they were being recorded. If the exchange moves to a quieter, more secluded area of the park where others aren’t present, the Duchow totality-of-circumstances test would assess whether the speaker had a reasonable expectation of privacy in that setting; if the speaker’s conduct and the setting indicate no such expectation, the recording remains lawful as long as you’re a participant. But if you secretly record a conversation you’re not part of, such as your co-parent talking to a new partner in a private home, that would likely violate Wisconsin’s wiretap law because the speaker’s expectation of privacy in that private setting would be reasonable under the Duchow factors.

There is no separately codified "public place exception" as such; instead, the reasonable-expectation-of-privacy requirement is built into the definition of "oral communication" itself (§ 968.27(12)). An oral communication is protected only if uttered "exhibiting an expectation that the communication is not subject to interception under circumstances justifying the expectation" (§ 968.27(12)). The Wisconsin Supreme Court in State v. Duchow, 2008 WI 57, 310 Wis. 2d 1, 749 N.W.2d 913, articulated a totality-of-circumstances test with non-exclusive factors: (1) volume of the statements, (2) proximity of other people to the speaker, (3) potential for the communication to be overheard/reported, (4) actions taken by the speaker to ensure privacy, (5) whether technological enhancement was needed to hear the statements, and (6) the location where the statements were made. Practically, a loud public dispute or a police officer’s on-duty statements made audibly in a public place will often fail this test, meaning capturing that audio may not even implicate § 968.31 at all — independent of the one-party-consent exception, which separately applies whenever the wearer is a direct party to the exchange.