“If I’m going through a divorce, can I secretly video/audio tape my spouse interacting with our kids?” I often get this question either before, during or after a divorce proceeding. Usually, a person wants to use the recording to impact the custody arrangement. 

The law in Michigan states that if one party in the conversation knows he or she is being recorded, then the conversation may legally be taped. But, if the parent in question knows about the recording, won’t he or she be on best behavior? So, the next logical person to give consent would be the child.

The question then becomes, “could one parent consent on behalf of the child?” The answer at this point in time is no; Michigan law does not provide for vicarious/implied consent.

In 1998 (Williams v. Williams), a husband taped conversations between his son and ex-wife. Neither the ex-wife nor the son knew their conversations/interactions were being taped. The wife sued the husband for violations of the state eavesdropping statutes, federal wiretapping statutes and for invasion of privacy. In his defense, the husband argued there was vicarious consent by the son because it was in the son’s best interests. Therefore, the husband/father believed he could consent on the son’s behalf. 

The trial court agreed, granting the husband’s motion to dismiss. However, the case bounced back and forth between the Michigan Courts until finally, the Michigan Court of Appeals found that the Michigan eavesdropping law did not allow for vicarious consent, similar to the federal law. So, they left it to the Michigan legislature to change the law, if it chose to do so.

The Michigan legislature has not changed the law and, therefore, a spouse is not allowed to audio tape (and by analogy video tape, or “nanny cam”) the children with the other spouse. In turn, doing so could pose potential criminal liability. With so much already at stake in a divorce, this is a risk parents cannot afford to take.