Litigation

In a child custody proceeding, a parent who is in his or her own home may be able to consent to the interception of the child's communications with the other parent, if the parent has a good faith, objectively reasonable basis to believe that the interception is necessary and in the best interest of the child. Smith v. Smith, Number 2004 CU 2168, Court of Appeal of Louisiana, First Circuit, September 28, 2005.

After their divorce, the parties shared joint custody of their child. The child resided primarily with the mother and had specific visitation with the father. Subsequently, the mother filed a petition seeking an increase in child support and a modification of the visitation schedule. The father cross-moved, seeking an award of custody and a recalculation of his child support obligation. During the earlier litigation, the mother discovered that the father had been intercepting and tape-recording conversations between her and their child without the mother's knowledge or consent while the child was visiting the father. Thereafter, a custody trial was held and the father was awarded custody after the trial. The tape-recorded conversations were used as evidence during the custody trial, and the mother appealed, arguing the conversations were acquired illegally. The appellate court affirmed. It held that under certain circumstances, a parent should be able to consent vicariously to tape recording telephone conversations on behalf of his or her minor child. It considered that there are cases where such vicarious consent is necessary for the child's best interests. The court held that in a child custody proceeding, a parent who is in his or her own home should be able to consent to the interception of the child's communications with the other parent, if the parent has a good faith, objectively reasonable basis to believe that the interception is necessary and in the best interest of the child.