OfflineHi folks,
This is time sensitive, but I just noticed that the last post was some time ago. I'll ask nevertheless in hopes that someone can point me in the right direction in time.
Wiretap issue:
Facts - Dad in California, children in Michigan. Dad and kids Skype frequently. Parents are involved in a heated custody dispute. Dad records Skype conversations to protect himself. All Skyping sessions are conducted in the middle of an open place (usually mom's house, but not always). They occur on "speaker" (not headphones), and there are frequently other people around and able to overhear (Mother, grandparents, aunts/uncles, neighborhood friends).
Dad has joint legal custody. Trial is looming. Mom finds out about recordings (is probably embarrassed and terrified), and goes after Dad for violating California wiretapping laws
Did dad commit a violation when:
a. Conversations are with his children;
b. There is no reasonable expectation of privacy.
Slander issue:
Same facts as above plus - Dad does not use drugs. Mom finds someone to say that he uses heroin, cocaine, and a number of other things. Dad takes hair follicle test and passes. Nevertheless, dad my have limitations placed on his custody based on an unfounded allegation (and completely random).
Cause of action? Accuser is in California. Allegations occurred over the phone to Michigan.
Thanks so much in advance for the help.
P.S. I understand that nobody provides legal advice on this forum. At a minimum, I'm hoping to find citations and resources supporting "Dad."
Print Me!
Regarding the wiretap question, there are a few levels to the issue that would affect litigation.
First of all, there is the question of whether Dad needs his children's permission to record your Skype calls. If California law applies, Dad would need that permission, as California's wiretapping law is a "two-party consent" law. If Michigan's law applies, it is more ambiguous - as the CMLP legal guide notes, Michigan's wiretapping law reads like a "two-party consent" law, but has been interpreted by at least one court as a de facto "single-party consent" law. But determining which law applies is a question of conflict of laws, and is outside my area of experience.
Whether Dad's Skype calls are "private" is another tricky question. I'm not aware of any cases that have dealt with the question (which is not surprising, considering the novelty of the technology). Perhaps there are some that have considered whether a call held on a speakerphone is a "private" communication under various wiretapping laws, however - that would seem to be the closest analogous situation. Again, the links above to the CMLP sections on wiretapping law may help.
Lastly, there is probably an issue of whether Dad's children have legal capacity to consent to recording, and if they do not, whether one or both of the parents has the ability to consent in their stead. This would turn on the family law of the jurisdictions at issue, neither of which I am familiar with, and so it is not something that I can offer advice about.
As for the slander issue, I'd recommend looking at the CMLP's legal guide section on defamation for general advice. I expect, however, that Dad's claim would be at least partially affected by the applicable family law - I expect most jurisdictions have encountered something like this situation over the years. As a result, it's hard to evaluate this situation without getting into specific legal advice (and again, since I'm not familiar with the family law that would be at issue, I can't offer any advice).