From Facebook Posts to Wire Tapping- Understanding the “Vicarious Consent” DoctrineRaising a child is hard enough to do under the most ideal circumstances. When you and your spouse decide to divorce, however, it becomes even trickier. Maybe you trust your former wife or husband, maybe you don’t – all you know is that you can’t be there for every conversation and to guide your child when he or she makes decisions. A lot of folks have a problem with that, and it leads some of them to do what, under “normal” circumstances, they swear they would never do: snoop.

There is a seemingly infinite number of apps out there that allow parents to read their children’s text messages and track their phones. A quick search online even offers some “how to” guides for monitoring your child’s Facebook and Instagram accounts. You can add parental settings to the computer, your cable box, and even your child’s car. From a legal standpoint, all of this is aboveboard (though your kids might not think so). So it might not seem like a big step to start listening in on phone calls, or even to record calls between your child and your ex. After all, you can access every other element of your child’s life; why not this one?

Actually, that one might go over the line. Depending on your unique circumstances, you could be in violation of Tennessee’s wiretapping laws or the Parental Bill of Rights, or you could be covered by the “vicarious consent” doctrine.

An interesting argument

Back in 2010, a divorced couple in Knox County went to court when the mother taped phone conversations between her 2 ½-year old daughter and the child’s father. An appellate Court eventually found for the mother, who “raise[d] the defense of the vicarious consent doctrine and create[d] a question of fact as to whether she had a good faith, objectively reasonable basis for believing it was necessary and in the best interests of the parties’ minor child to consent on behalf of her to the taping of a conversation with [Father] and the minor child.”

But the father’s argument – that the conversation was recorded without his consent or the consent of his daughter constituted an invasion of privacy – is an interesting one. At 2 ½, the child in this case was obviously too young to have consented to anything, as she lacked the capacity to understand what her mother was doing and to give or deny consent. If the child had been older, however –9 years, 12 years, or 17 years, for example – the vicarious consent doctrine may not have held up under law, as the child would have the capacity to understand what was happening.

Seek counsel before you act

For parents who believe that their child is in danger of being abused or harmed in some way, the vicarious consent doctrine is incredibly useful, as it could be the tool that helps you save your child. However, Tennessee has laws about listening in on a child’s phone call with your ex. The Parental Bill of Rights contains a provision that states that parents are entitled to “unimpeded telephone conversations with their child,” and many judges interpret that to mean that parents are not to monitor or listen in on those calls, because it could be deemed as “impeding” with the phone call. If you are afraid your child is being abused, come see me. As a Maryville family law attorney, it’s my job to help you navigate the murky waters of the law in an ethical and beneficial way. And if you believe your child is unsafe with your former spouse, acting quickly is in everyone’s best interests. I can help you get what you need to keep your family safe.

Whether you have been divorced for years or are in the beginning stages of a dissolution, Kevin W. Shepherd, Attorney at Law can help. Please contact my law firm, Shepherd and Associates, P.C. by filling out this contact form or by calling 865.225.9655.




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