Supreme Court approves parent’s taping of child’s telephone conversation

Though not a family court appeal, the July 11, 2012 Supreme Court opinion in State v. Whitner, 399 S.C. 547, 732 S.E.2d 861 (2012), has important application to family court proceedings.  Whitner sets the parameters under which a parent may tape a child’s telephone conversations without that child’s consent.

In Whitner, Mother, based on concerns that their child was being sexually abused by Father, taped the child’s telephone conversations with Father without Father’s consent or knowledge.  Mother and Stepfather testified they believed the recordings would assist them in deciding the best course of action and in determining whether the child needed counseling. Likewise, Mother testified it was necessary to determine if it was in the child’s best interest to have continued visitation with Father.  During one of these phone conversations Father admitted to and apologized for the sexual abuse.  Mother supplied the recording to law enforcement, and Father was arrested and charged with CSC with a minor in the first degree.

Father filed a motion to suppress the recorded telephone conversation, claiming the recording, intercepted without the prior consent of  either party, violated the South Carolina Homeland Security Act (Wiretap Act), S.C. Code Ann. § 17-30-10  et. seq. (Supp. 2010), which generally prohibits the interception of communications.  Ultimately the audiorecording was not suppressed, Father was convicted, and he appealed the conviction.

One issue on appeal was whether a parent can vicariously consent to the recording of a child’s telephone conversation.  All five justices agreed that, in the circumstances of this case, Mother could vicariously consent to the recording.  The majority opinion authorized this recording because “Mother had a good faith and objectively reasonable basis for intercepting the telephone conversation between the victim and Appellant.”

Justice Pleicones, in a concurrence joined by one other [acting] justice, agreed that the audiorecording was admissible but felt that the majority erred by imposing a “good faith and objectively reasonable” test upon the ability to give vicarious consent to taping a child’s phone conversations.  His analysis highlighted the constitutionally protected right parents have to direct the upbringing of their children, concluding:

In light of the fact that the Wiretap Act criminalizes violations and that the parental right is fundamental under the Constitution, I do not believe there is room for any qualification of the vicarious consent exception.  At the very least, the majority’s test must be recast in order to place the burden on the party asserting that the parent’s consent was invalid to prove that the parent did not act in good faith or in reliance on objectively reasonable concerns.

Whitner’s majority opinion indicates that when parents record the telephone conversations of their child without the child’s consent, such audiorecordings will be admissible if the recording was done in “good faith” and on an “objectively reasonable basis.”  However such audiorecordings made without “good faith and objectively reasonable basis” may not be admissible and may subject those parents to civil and criminal liability.

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