
    WILLIAMS v WILLIAMS (ON REMAND)
    Docket No. 197780.
    Submitted June 8, 1999, at Lansing.
    Decided September 3, 1999, at 9:15 A.M.
    Brenda L. Williams brought an action in the Ingham Circuit Court against Brent and Ginger Williams, claiming violations of the Michigan eavesdropping statute, the federal wiretapping act, and the common-law right of privacy. Brent Williams, the plaintiffs former husband, made at least two tape recordings of conversations between the plaintiff and Jason Williams, the minor son of the former marriage, without the express consent or the knowledge of either the plaintiff or Jason. The recordings were made in the home of the defendants during a period that Brent Williams had sole legal and physical custody of Jason. The plaintiff moved for summary disposition on the basis that, because there had been no consent to the recordings by either party to the conversation, she was entitled to judgment as a matter of law under both the federal and state statutes. The defendants moved for summary disposition on the basis that Brent Williams as custodial parent could consent to the recordings on Jason’s behalf where the consent was in Jason’s best interests. The court, Thomas L. Brown, J., denied summary disposition for the plaintiff and granted summary disposition for the defendants on the basis that Brent Williams’ status as a custodial parent gave him the authority to consent to the recording of the conversations on Jason’s behalf. The plaintiff appealed. The Court of Appeals, McDonald, P.J., and Sawyer and Hoekstra, JJ., reversed, holding that neither the state statute nor the federal act provided a basis for finding that a custodial parent could give vicarious consent to the recording of a conversation on behalf of a minor child and that, accordingly, the circuit court erred in granting summary disposition for the defendants. 229 Mich App 318 (1998). The defendants sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, remanded the matter to the Court of Appeals for reconsideration in light of Pollock v Pollock, 154 F3d 601 (CA 6, 1998). 459 Mich 981 (1999).
    On remand, the Court of Appeals held:
    
    1. The United States Court of Appeals for the Sixth Circuit held in Pollock that a guardian may give vicarious consent to a recording on behalf of a minor child for the purpose of the federal wiretapping act, 18 USC 2510 et seq., if the guardian has a good-faith and objectively reasonable basis for believing that the recording of the conversation was necessary and was in the best interest of the child. Because there is no conflict among the federal courts with respect to the meaning and intent of the federal act in this regard, the holding in Pollock is binding on the courts of this state with respect to claims brought under the federal act. However, because the circuit court did not specifically decide that the defendants had a good-faith and objectively reasonable basis for believing that the recordings were necessary and were in the best interests of the child, the circuit court erred in granting summary disposition for the defendants with respect to the claim brought under the federal act, but the matter must be remanded to the circuit court for consideration of that question.
    2. Because Michigan courts are not compelled to follow federal precedent concerning the federal wiretapping statute in the interpreting of the Michigan eavesdropping statute, MCL 750.539 et seq.-, MSA 28.807 et seq., and because the statutory analysis of the Michigan statute in the prior opinion in this matter remains sound, it is again held that the circuit court erred in granting summary disposition for the defendants and in denying summary disposition for the plaintiff with respect to the claim brought under the Michigan eavesdropping statute.
    Reversed and remanded.
    Telecommunications — Wiretapping — Participant Recordings — Minors — Custodial Parents.
    A custodial parent of a minor child can vicariously consent for the purposes of the federal wiretapping statute to the recording of a telephone conversation in which the child is a participant such that the recording falls within the statutory exception of the federal wiretapping statute for recordings made with the consent of one of the parties to a conversation where the custodial parent has a good-faith, objectively reasonable basis for believing that the recording is necessary and is in the best interests of the child (18 USC 2510 et seq.).
    
    
      Harrison & Scott, P.C. (by Keldon K. Scott), for the plaintiff.
    
      Kolasa, Bodwin & Fuzak, P.C. (by Randolph L. Bodwin and Michael L. VanErp), for the defendants.
   ON REMAND

Before: McDonald, P.J., and Sawyer and Hoekstra, JJ.

Per Curiam.

This case is before us on remand from the Supreme Court, 459 Mich 981 (1999), for reconsideration in light of Pollock v Pollock, 154 F3d 601 (CA 6, 1998). The trial court had denied plaintiff summary disposition and granted defendants summary disposition with respect to both the count plaintiff brought pursuant to the Michigan eavesdropping statute, MCL 750.539 et seq.; MSA 28.807 et seq., and the count plaintiff brought pursuant to the federal wiretapping act, title III of the Omnibus Crime Control and Safe Street Act of 1968, 18 USC 2510 et seq. In our original opinion, we reversed the trial court’s order with respect to both counts.

After reconsideration, we adhere to the holding of our prior opinion reversing the trial court’s order with respect to the state law count. Regarding the trial court’s order with respect to the federal law count, we again reverse but remand this cause to the trial court for it to determine whether the vicarious consent exception to the federal wiretapping act applies in this case.

i

The facts of this case were set forth in detail in our prior opinion, Williams v Williams, 229 Mich App 318; 581 NW2d 777 (1998), and will not be reiterated here. The issue that plaintiff presented on appeal was an issue of first impression for this Court: whether a custodial parent of a minor child may consent on behalf of the child to the interception of conversations between the child and another party and thereby avoid liability under the Michigan eavesdropping statute and the federal wiretapping act. We analyzed the question under each statute and found no indication that either the Michigan Legislature or Congress intended to create an exception for a custodial parent of a minor child to consent on the child’s behalf to interceptions of conversations between the child and a third party. Accordingly, we declined to create judicially a vicarious consent exception to the Michigan eavesdropping statute or to construe so broadly the existing consent exception to the federal wiretapping act as to include such an exception.

n

Since the release of our prior opinion, the Sixth Circuit Court of Appeals in Pollock, supra at 610, adopted the analysis of the federal district court in Thompson v Dulaney, 838 F Supp 1535, 1544 (D Utah, 1993), holding that

as long as the guardian has a good faith, objectively reasonable basis for believing that it is necessary and in the best interest of the child to consent on behalf of his or her minor child to the taping of telephone conversations, the guardian may vicariously consent on behalf of the child to the recording.

This Court considered the reasoning in Thompson in our previous opinion and rejected it, finding no authority to follow the lead of Thompson and like-minded courts. However, because the Sixth Circuit Court of Appeals has now spoken concerning the issue and no conflict among the federal courts exists, we are bound to follow the Pollock holding with respect to the federal question in this case. See Young v Young, 211 Mich App 446, 450; 536 NW2d 254 (1995).

The trial court referred to the holding in Thompson, but it did not specifically decide whether defendants had a good-faith, objectively reasonable basis for believing that it was necessary and in the best interest of the minor child to consent on behalf of the child to the tape-recording of the telephone conversations with plaintiff. Rather, the trial court held merely that “a legal guardian under the present circumstances, has the right to give vicarious consent.” Defendants here claimed that they recorded the conversations to find out whether plaintiff was violating a court order that prohibited her from portraying the minor child’s father in a negative light. However, plaintiff stated in her deposition testimony that defendants had also tape-recorded conversations between the minor child and plaintiff’s husband and between the minor child and the daughter of plaintiff’s husband. Consequently, we again reverse but remand to the trial court to make this necessary inquiry and decide whether there exists a genuine issue of material fact warranting trial.

m

In contrast, this Court is not compelled to follow federal precedent or guidelines in interpreting the Michigan eavesdropping statute. See Continental Motors Corp v Muskegon Twp, 365 Mich 191, 194; 112 NW2d 429 (1961). We remain convinced by the statutory analysis in our prior opinion that if the Legislature had intended the result argued by defendants, then it could have included such an exception in MCL 750.539g; MSA 28.807(7). Moreover, we remain convinced that the delicate question posed in this case and the effect that its resolution may have both on how family law is practiced and the relationship between the child and each of the parents, is more appropriately commended to the legislative branch. Accordingly, we again reverse with respect to that part of the trial court’s order granting summary disposition for the defendants with respect to the count brought pursuant to the Michigan eavesdropping statute and denying summary disposition for the plaintiff with respect to that count.

Reversed and remanded. We do not retain jurisdiction.  