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In the US, ECPA/Wiretapping law prohibits interception/recording of phone conversations; an exception is when one party consents to the interception. In some circuit and state jurisdictions a parent can secretly give "vicarious consent" on behalf of a minor child if it is reasonably necessary to protect the child from abuse or crimes; in other jurisdictions that exception has not been recognized.

I would like to know if the vicarious consent doctrine applies in the 9th Circuit or State of Hawaii, i.e., can a parent secretly record calls between the minor child and the other parent.

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The United States District Court for the District of Utah was the first Federal court to adopt the doctrine of vicarious consent and did so in the context of custody proceedings where one parent recorded the other parent's conversations with the couple's two minor children, then three and five years of age.

However a statutory construction waives no 4th amend privacy nor a 5th amend privilege. Both are inviolable protections of the Supreme Law and not subject to interpretation that would impair or abridge the citizen.

True the minor is unable to grant consent and the parent has a duty to protect. But the issue is that unless the other adult who is the real target of the invasion of privacy expressly consents. The law is being broken. It's no different than an illegal search and seizure violation. Or a breach of "client confidentiality".

Even further can a drunk date give secret consent for sex. Implied consent is not consent at all. Nor can anyone be forced to give open or secret (virtual) permission to violate or abuse another. Consent must be mutual and express for it to survive any test or objection.

These common law principles (in our Bill of Rights), derive from the Magna Carta (The Great Charter) 1215 enacted to protect fundamental human rights from oppressive arbitrary abuses.

Secret consent is a paradox. How would one secretly give "vicarious consent"? And why would any reasonable educated person who expects to enjoy privacy allow and or endorse such a trespass? It's clearly a perversion of law and clearly incompatible with our free society.

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    My kids were just taken away from me in Colorado because videos of my ex-wife recorded while we were in the marital home of me disciplining my daughter back in 2015 and 2016. She clearly used them to only gain custody for relocating after not being rewarded spousal maintenance. I had my kids joint custody. There was not abusive about me spanking my child on the bottom with a thin belt or sandal for misbehavior. I filed a motion based on eavesdropping and 16-15-102(10) to suppressed evidence. The Magistrate claim it was her right. I will appeal this to the Supreme court.
    – Robert Brooks
    Commented Sep 9, 2018 at 22:00
  • The burden of proof standard for Civil / non-criminal actions is preponderance of evidence. This preponderance is based on the more convincing evidence and its probable truth or accuracy. Not on the amount of evidence. Regardless of which parent is claiming what. The court knows that people are not always honest or have biased memories. So clear and convincing evidence along with established "norms" fill in blanks and guide the courts "opinion" in making determinations. Which are always rebuttable by more convincing evidence, if there is any. law.cornell.edu/wex/preponderance_of_the_evidence
    – American Native
    Commented Sep 11, 2018 at 16:33
  • The State and National Constitutions only protect citizens from abusive government actions. In your case, the former spouse is the opposing party asking the government to protect the children from potential harm. The Colorado "govt" is not taking your children, the mother is. The basis is that you were shown to be using harmful (not abusive) methods of punishment. Which has been established to be associated with or may lead to serious injury of children in general. Both parents have an equal right to record and exhibit anything that involves their children. @Robert Brooks
    – American Native
    Commented Sep 11, 2018 at 17:40
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    Yea in Colorado the system is setup in such that they have a Child Family Investigator and the Magistrate will just take the recommendation of the CFI. Therefore the fact that I would not agree to no corporal punishment, the CFI gave recommendation in favor or everything my spouse wanted. No reasonable person without bias would call spanking your kid on the bottom or hand, as a last measure of punishment, as abusive. There was no seriously bodily injury or any instruments use that would cause such. To take the recommendation of the CFI and ignoring the evidence, is clearly abusive.
    – Robert Brooks
    Commented Sep 12, 2018 at 19:33
  • Especially when the conduct of corporal punishment must be considered criminal. Which looking at criminal cases of child abuses, my child never had black eyes, swollen lips, or any bruises documented by a qualified Medical physician. Only a picture provided by a embitter spouse from three years ago claiming eczema to be a bruise. The Magistrate objected on behalf of my wife from admitting my daughter medical record, and demonstrative evidence. A long with a email from her Primary Care Provider stating it looked like a flare up of her skin condition. System is broken and corrupted
    – Robert Brooks
    Commented Sep 12, 2018 at 19:40

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