Facts: While the parties’ divorce action was pending, Mother secretly recorded a telephone call between Father and their 2-1/2 year old child. Mother was not a party to the conversation and Child was too young to consent to the recording. Mother gave the recording to a psychologist for consideration relative to the parties’ custody dispute. After the conclusion of the divorce, Father sued Mother for civil damages for violation of Tennessee’s wiretapping statute. The trial court granted summary judgment to Mother.  Father appealed.

The Court of Appeals affirmed.

Tennessee’s wiretapping statute, Tenn. Code Ann. § 39-13-601, provides in part:

[A] person commits an offense who:

(A) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; . . .

(C) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection(a); . . .

(5) It is lawful . . . for a person not acting under color of law to intercept a wire, oral, or electronic communication, where the person is a party to the communication or where one of the parties to the communication has given prior consent to the interception, unless the communication is intercepted for the purpose of committing any criminal or tortious act in violation of the constitution or laws of the state of Tennessee.

In this case of first impression in Tennessee, the Court adopts the doctrine of “vicarious consent,” reasoning as follows:

A parent has a right to “childrearing autonomy” unless and until a showing is made of “a substantial danger of harm to the child.” It is readily apparent to us that “childrearing autonomy” encompasses control of a 2 1/2-year-old child’s access to the telephone, including to whom the child speaks and when the child speaks and under what conditions the child speaks. We are also inclined to agree with the trial court that as to a 2 1/2-year-old, this right is “unrestricted.” We are not, by this opinion, painting a bright line as to age. Since 2 1/2 is obviously an age at which a child is too young to give consent, we see no need to determine a bright line rule in this case. . . .

[W]e do not believe that the legislature intended to impose criminal penalties and money damages with respect to a telephone conversation between a parent and a 2 1/2-year-old child during the pendency of a divorce proceeding. Accordingly,we hold that, as a matter of law, Mother had the right to consent, as that term is used in Tenn. Code Ann. § 39-13-601, vicariously to intercepting, recording and disclosing the child’s conversation with Father.

The Court noted it’s holding is limited to the facts presented in this case.  The opinion should not be read to hold that a parent has carte blanche authority to intercept a child’s communications with the other parent during a divorce case. For example, it would be much more difficult to justify the interception with a significantly older child. At what point does vicarious consent not apply?  A 12-year-old?  What about a 17-year-old child?  The doctrine of vicarious consent will surely be scrutinized (and probably limited) in future cases with varying fact patterns.

Lawrence v. Lawrence (Tennessee Court of Appeals, Nov. 29, 2010).

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