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A New Tap Dance for Parents in Custody Fights

An interesting case came up in another state, and family law attorneys in Illinois -- and everywhere there are kids with phones -- are waiting for the next step. The decision deals with a parent recording a chlid's telephone calls without consent, and it all started with a custody dispute between the parents of a 2 ½-year old girl.

The case is from Tennessee. The parents were preparing for a custody evaluation as part of their divorce. When the father called one day, the mother put the 30-month-old on the phone, picked up the extension in another room and held a tape recorder to the receiver. She copied the recording and delivered one copy to her attorney. The father discovered the ruse and sued under the state's wiretapping law.

It's a crime in Tennessee to record or to eavesdrop on a phone call without the consent of at least one of the parties. If the recording were made from a location where the conversation could be overheard anyway, there is no violation. In other words, if the mother had been listening and recording on the same phone that her daughter was using, the charges would not stick. (The mother explained that she only went into the other room because her daughter would play with the recorder if she saw it.)

The trial court broke new legal ground in its ruling. The court said that the law did not apply to parents recording conversations of their children. The recent decision, from the appellate court, agreed. "A parent has the right to childbearing autonomy unless and until a showing is made of a substantial danger of harm to the child," the court wrote. In this situation, because the child was 2 ½ at the time, the parent has the authority to control access to the phone. Further, the legislative intent of the wiretapping law did not include the invasion of the parent-child relationship.

The decision stopped short of extending the ruling to older children. Younger children are generally under the control of their parents. Older children, in contrast, are more autonomous, able to make decisions and to understand the consequences.

The case may have turned out differently in Illinois, where it is a crime to wiretap a conversation without the consent of both parties. Even 2 ½-year-olds can have a little privacy while the parents settle the custody issue.

Resource: KnoxNews.com "Tapping Kids' Calls OK" 12/10/10

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