Lawrence v. Lawrence, 360 S.W.3d 416

Mother secretly recorded a telephone conversation between Father and their 2½-year-old daughter during a divorce custody dispute.
Recording occurred late May or early June 2007; child could not consent, and Mother was not a party to the conversation.
Mother positioned herself to avoid alerting the child and disclosed the recording to a psychologist conducting a custody evaluation.
Father sued for wiretapping under Tenn. Code Ann. § 39-13-601; he moved for partial summary judgment which the trial court denied in part and later granted in part to Mother.
The trial court held the statute overbroad and that a parent has a vicarious right to consent to intercept and record a conversation involving a child, rendering Father’s claim non-justiciable.
The Tennessee Court of Appeals affirmed, holding that a parent may vicariously consent for a very young child, making the recording lawful under the statute.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 'consent' in the wiretap statute is ambiguous and how it applies to a minor	Father argues no valid consent exists from the child.	Mother contends parents have unrestricted authority to consent for their child.	Consent is ambiguous; parent may vicariously consent for the child.
Whether the statute permits vicarious consent given the child's age and the parental rights	Father asserts the statute protects minors and limits parental consent.	Mother relies on parental autonomy and constitutional right to rear the child.	Parental right to childrearing autonomy supports vicarious consent for a 2½-year-old.
Whether the trial court properly granted Mother's partial summary judgment	Father asserts there are triable facts showing a violation of the wiretap statute.	Mother argues the statute does not apply given vicarious consent.	The appellate court affirmed the grant of partial summary judgment for Mother.

Pollock v. Pollock, 154 F.3d 601 (6th Cir. 1998) (guardian may vicariously consent if in the child’s best interest and necessary)
Spencer, 737 N.W.2d 124 (Iowa 2007) (father may consent on behalf of a minor to recording; age considered)
Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993) (parental rights to rear children; parens patriae anatomy)
Cardwell v. Bechtol, 724 S.W.2d 739 (Tenn. 1987) (varying degrees of maturity; usually under seven lacks capacity to consent)
Tuetken v. Tuetken, 320 S.W.3d 262 (Tenn. 2010) (divorce proceedings implicate parental liberty; court’s role to prevent harm)
In re Knott, 197 S.W. 1097 (1917) (early articulation of parental rights and childrearing autonomy)