Making recordings of a telephone calls between children and the other parent may seem like a good idea, but is it legal? Can the recordings be used at a divorce or custody hearing? Could you be arrested for making these recordings?
The answer (as is common in everything involving the law) is “it depends”. Read on to find out why.
It’s generally illegal to record or intercept a telephone call or other electronic communication. However, Tennessee is a “one party notification” state, which means a phone call may be recorded as long as one party to the call consents to the recording.
Here’s the problem: For legal purposes, children generally can’t give consent to anything (there are some exceptions). When a child has no authority, it’s expected that their parent can give consent for them. However, our wiretapping statute says “a person” who is a party to the call can agree to the recording. “Person” is defined in the statute and the definition includes “any individual”. So the questions are: Can a child approve of being recorded on the telephone? If not, can a parent give consent for the child and record the calls anyway?
Vicarious consent and telephone recording in federal court
The federal wiretapping statue is similar to Tennessee’s in that recording a phone call is legal if one party to the call has given their approval. In Pollock v. Pollock, the 6th Circuit Court of Appeals (Tennessee is in the 6th Circuit) was asked to decide whether a parent could provide the consent for the child, even when the parent is not included in the call.
In Pollock (an appeal of a divorce), the issue was that a mother had recorded a phone call between her 14 year old daughter and her ex-husband’s new wife (the stepmother). Neither the child or the stepmother knew they were being recorded. The reason for the taping was that the child’s mother had become concerned that her ex-husband and his wife were emotionally abusing the child.
The federal court held that the mother could vicariously consent to the recording in place of her daughter because she had “a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations”. This case was decided in 1998.
The law and recording a child’s phone call in Tennessee
In 2010, the Tennessee Court of Appeals considered the issue in McDaniel v. McDaniel. This divorce case involved a recording between a minor child and his mother, made during a call while the child was at his father’s house. Neither the child nor his mother realized they were being taped. In this instance the father ran a real-estate renting business. Because he had received some calls from irate renters, he had a machine that recorded all calls from the home. An “alarming” conversation happened to have been recorded between the child and his mother, and the controversy involves whether the recording should be admitted as evidence.
However, in McDaniel there was no suspicion of any abuse or any other reason to record the child’s calls. The father hadn’t even necessarily intended to tape the call, the recording machine had just been left on. The Court decided that there was no exception that allowed the taping of this telephone call and the contents of it should not be considered at trial.
Later in 2010, the Court addressed the issue again in Lawrence v. Lawrence. In this case the parents of a 2-1/2 year old child were involved in a divorce and custody dispute. The mother recorded at least one phone call between the young child and the child’s father. The Court was asked to decide if the mother had violated Tennessee law.
The court began by finding that a 2-1/2 year old “obviously” couldn’t provide consent to the recording. Because the child was so young, the court did not create any rule limiting the age at which a child could give consent. However, the Court has clearly left itself open to the possibility that a more mature child could have the ability to either approve or refuse to allow their calls to be recorded.
Next, the court recognized “the fundamental right of parents to make decisions concerning the care, custody, and control of their children”, a right that parents have under the Tennessee constitution. Given the parent’s right to make these decisions and the child’s inability to decide for herself, the court held that a parent could give vicarious consent to a telephone recording. While the Court mentioned the Pollock case, it did not require the parent to provide any justification for making the recording.
What you need to know
This is a very brief summary of the law in this area, and you should definitely talk to an attorney before making recordings of your children’s phone calls. As happens often in questions of law, there are few easy answers in this issue. If you are in a situation where you may need to be a little sneaky to build your case, contact me to find out how I can help you.