Facts: During the course of their divorce, Wife’s telephone calls with her child from a previous marriage were recorded by that child’s father, who in turn provided the recordings to Husband. The recordings revealed Wife making disparaging and threatening remarks about Husband. The tapes were admitted into evidence over Wife’s objection. Wife appealed.

The Court of Appeals held the trial court committed reversible error by admitting the recordings into evidence.  The recordings violated the Tennessee Wiretapping Act because neither party was aware they were being recorded. This rendered the recordings inadmissible.

[T]he Tennessee statutes do not prohibit the recording of a conversation when one of the parties to that conversation consents to such recording. The relevant Tennessee statutes, however, do prohibit the intentional taping of a conversation when neither party to that conversation consents to the recording, which is what happened when the conversation between Mother and [her child from a previous marriage] was intercepted and recorded.

Compare this opinion with that of the Sixth Circuit in Pollock v. Pollock, where a parent was found to have “vicariously consented” to a surreptitious recording of their child.  A colleague advises me that he has a Pollock issue on appeal to the Tennessee Court of Appeals so it will be interesting to see whether the Tennessee courts adopt the Pollock approach in custody cases and whether/how McDaniel affects their analysis. Stay tuned.

McDaniel v. McDaniel (Tenn. Ct. App. May 27, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.