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Divorced Mother Tapes Conversation of Child and Father for Child Custody Purposes

Can one parent secretly listen and tape a telephone conversation between their child and the child's other parent for the purposes of a child custody suit? That is the issue that the Tennessee Court of Appeals had to rule on recently. The Tennessee court's decision on secret recorded conversations was a legal groundbreaker and only applies to Tennessee law.

One divorced Tennessee mother who was in a custody dispute with her former husband decided to secretly listen and record the conversation her ex-husband was having with their two and one half year old child. The mother gave a copy of the recorded conversation to a psychologist. The psychologist was conducting a custody evaluation as a part of the child custody issue of the couple's divorce case. Under Tennessee law, it is a crime to secretly record or eavesdrop on a phone call between two unknowing speakers. The crime is punishable by civil fines and jail time. But, this legal question does not involve two unknowing adults; it involves one unknowing adult and an unknowing minor who is the child of the adult listener.

The attorney for the ex-husband and father of the child argued that the secret recording blatantly violated the law because neither person consented to the recording. The attorney for mother argued that a parent does not need permission to monitor or record the phone calls of their minor child. Tennessee law did not speak to the issue. The circuit court judge ruled that the wiretapping law did not apply to parents who secretly recorded their children's telephone calls. The father appealed the decision, but the appellate court agreed with the lower court.

The appellate court ruled that a parent's ability to raise their child "encompasses control of a 2 1/2-year-old child's access to the telephone." The appellate court went on to say that the wiretapping law should not interfere with the parent-child relationship. The issue could rise again in a child custody case because the court did not explain at what age a child could give or withhold consent to listen.

Source: knoxnews.com, "Tapping Kids' Calls OK," Jamie Satterfield, 12/10/10

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