child telephone calls / comments

[mudbunnies]

Florida case
Brevard County

FJ entered 12/2002, currently pending modification

I read your comments below to parent asking if enforcing phone calls is petty...

My question is as follows;

1.  When dealing with a motion for contempt on phone calls as it relates to a child stating another parent is forbidding the calls, etc... can you actually use those "comments" in court or is that hearsay?

2.  Our son states "mom says I am not allowed to discuss that with you Dad" (for any and every subject including school, lunch, activities, etc), if Dad repeats this to the judge will the opposing counsel's obj to it being hearsay stand?

3.  Can one consenting parent record their onw child in florida on the phone?

thanks

[socrateaser]

>1.  When dealing with a motion for contempt on phone calls as
>it relates to a child stating another parent is forbidding the
>calls, etc... can you actually use those "comments" in court
>or is that hearsay?

What comments? LOL...got to give me specific facts or I can't answer your questions.

>
>2.  Our son states "mom says I am not allowed to discuss that
>with you Dad" (for any and every subject including school,
>lunch, activities, etc), if Dad repeats this to the judge will
>the opposing counsel's obj to it being hearsay stand?

The out of court statement of a party to the case is called an "admission," it is not hearsay, and is therefore admissible. However, your state that the "child" said that the mother said..., and that is hearsay within hearsay, which is not admissible unless each individual hearsay is excepted by an evidentiary rule. Here, although the mother's out of court statement is a party admission, the child is a witness and not a party, thus he must be available for cross-examination by the adverse party (i.e., the mother), if the mother's out of court statement is to be ruled admissible.

And, as the child is only 10 years old, his testimony may be deemed unreliable, and therefore inadmissible.

It's a big judgment call, that can be avoided by routinely recording the phone conversations and notifying the other parent in writing that you intend to do so in advance of future phone calls.

>3.  Can one consenting parent record their onw child in
>florida on the phone?

If private phone calls are not ordered by the court, then you must notify the other parent in writing and in a manner that will allow you to prove later that they received notice, of your intent to recorde ALL future phone conversations, regardless of when or with whom.

If you plan to go this route, then I would consider having the other party personally served with written notice of your intent, so there can be NO possible out later on.

Even if you do record the conversations, the child's testimony on tape that he is forbidden to call, is still objectionable as hearsay, unless the child is subpoenaed to testify to the fact at trial/hearing. This is true because the tape refers to the child's statement as to what the parent said, and we don't know if the child is telling the truth.

Generally, the best move is to simply ask the other parent directly why she is forbidding the phone calls. Frequently people will just state their reasons when asked directly and if you have previously notified mother that she will be recorded, and you do, in fact record the conversation, then she is toast.

[mudbunnies]

Court order specifically states that father and childs phone calls shall not be monitored or listened to or interefered with by the mother

Mother has specifically stated that Father, nor his agent, is allowed to photograph or record her sound, image or what not in any manner known to man or conveived of in the future....


Dad wants to record phone calls between himself and child only.


1.  From your comments and my replies does it appear that we are okay with this without notifying the mother?

[socrateaser]

Recording conversations falls under the legal theory of "implied consent." A person impliedly consents to being recorded, if (1) they have knowledge that a recording will take place during a conversation, and (2) they engage in that conversation.

Here's an extreme example:

F: Hi, can we talk?
M: Sure.
F: OK, I'm gonna record this conversation.
M: I forbid it.
F: Well, if you don't want to talk, you're free to hang up, but I'm recording you anyway.
M: You better not or I'll sue you.
F: So, anyway, let's talk about our boy...

etc...

In the above scenario, the tape recording of the conversation would be admissible in court. M had the opportunity to terminate the conversation, but by choosing not to, M "impliedly consents" to the recording.

Different jurisdictions have different corner cases and legislation that may modify the general application of the law I have just described. However, generally, the above-described example would be admissible evidence in every jurisdiction.



Hope this helps.