Recording of child's phone call made by father with joint custody is admissible

Law Reporter, Jun 2003

Apter v. Ross, 781 N.E.2d 744 (Ind. Ct. App. 2003).

An Indiana appellate court held a divorced father's recording of a phone conversation between his ex-wife and their child is admissible in court, as he had joint custody and had the power to consent on the child's behalf.

Here, a divorced father challenged a modification of the custody order regarding his two daughters. He sought to introduce a tape recording of a phone call between one daughter and his ex-wife, which had been recorded on his home answering machine. The trial court found the tape inadmissible.

Reversing, the appellate court said that such a recording is admissible only if it qualifies under the exceptions to both federal and state and-wiretapping law. Citing case law, the court found that parents are allowed under federal law to record their minor children's phone calls if the parents are motivated by concern for the child's well-being. While the evidence did not establish that the daughter was actually distressed by the phone conversation with her mother, plaintiff testified that his daughter's appearance and behavior created a concern for her well-being. Because the father's concern for his daughter's welfare was his motive for making the recording, it is admissible under federal law.

Turning to Indiana law, the court found that the recording of a telephonic communication is not an interception if it is done with the consent of the sender or receiver of the communication. Here, the father retained joint custody of his minor daughter, which includes the right to execute consents and waivers on her behalf. Therefore, the recording is admissible under state law as well.

Accordingly, the court remanded.

Plaintiff's Counsel

David W. Stone IV, Anderson, Ind.

Gale M. Phelps, Indianapolis, Ind.