By Megan L. Gehring, Richard A. Mann PC
The Indiana Parenting Time Guidelines provide for parents and children to have reasonable phone access to each other. The guidelines also provide that parents and children are entitled to private communications. But what if the other parent has concerns for the child's well-being related to such communications? Can a recording of these communications be admitted into evidence? And does a parent risk violating state or federal wiretap laws?
The Indiana Court of Appeals addressed these issues in Apter v. Ross, 781 N.E.2d 744 (Ind. Ct. App. 2003). In that case, the Father recorded a phone call between Mother and Daughter. The trial court did not allow the recording into evidence, but the Court of Appeals held that the recording should have been admitted as it did not violate the Wiretap Act.
The court in Apter, supra, explained that in a civil case a recording may be admitted if a proper foundation establishes that 1) it is authentic and correct, 2) it does not contain matter otherwise not admissible into evidence and 3) it is clear enough to be intelligible and enlightening to the jury. In order to meet the second requirement, the recording must not violate the federal or state wiretapping laws, as those laws exclude from evidence any interception of communications which are in violation.
The Federal Wiretap Act (18 U.S.C. § 2510 et seq.) prohibits a person from intentionally intercepting communication without the consent of one party to the communication. There is an exception for communications intercepted by a subscriber in the ordinary course of business. This exception has been held to apply to parents, who are the subscriber, as raising their children is their "business." Scheib v. Grant, 22 F.3d 149 (7th Cir. 1994). To fall within this exception, a parent must be acting out of concern for the child's well-being. This test focuses on the parent's motivation and not whether or not the child's well-being was actually at risk. Therefore, so long as the parent establishes that the act of intercepting the communication was motivated by a genuine concern for the child's well-being, the recording does not violate the Federal Wiretap Act and may be admissible.
Indiana has a Wiretap Act (I.C. 35-33.5) as well that prohibits interception of communications without the consent of either party to the communication. In Apter, the Court held that the recording did not violate the Indiana law because Father had the right to consent to the interception on behalf of his minor daughter. Father had joint legal custody of Daughter and pursuant to Indiana Code 29-3-3-3(a), unless otherwise determined by a court, a parent has the power to execute consent on behalf of a minor under any statute. Because Father's power to consent on Daughter's behalf had not been limited by any proceeding, under Indiana law he had the authority to consent to the recording on behalf of his daughter and, therefore, did not violate Indiana's wiretap laws as the consent of one party is all that is required.
While a recording of a phone call between a parent and a child may be admissible if the above requirements are met, parents should not attempt to abuse these limited exceptions. The Parenting Time Guidelines permit phone access between parents and children and they are entitled to private communications without the interference of the other parent. It will be the burden of the parent intercepting the communication to show that they were truly motivated by concern for the child's well-being as specifically related to the intercepted communication. A court could find a parent interfering with the child's communications to be violating the guidelines and in contempt. Furthermore, continued egregious interference with the other parent's relationship with the child could lead to a modification of custody or parenting time. Therefore, parents should not attempt to intercept communications between the child and other parent unless there are exceptional circumstances truly causing the parent to have genuine concerns for the child's well-being pertaining to that specific communication.
This is a fact-sensitive and legally complicated matter that should be discussed with an attorney before recording any such conversations. Many states ban all recording of conversation so you should consult an attorney in your jurisdiction.
This post was written by Megan L. Gehring of Richard A. Mann PC. If you would like to submit content or write an article for the Family Law Section page, please email Rachel Beachy at firstname.lastname@example.org.