LEGAL BRIEFING - Santa, soldier dad raises quandary for mom

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Dear John,

Every year, I take my son to see Santa. I take video of him sitting on Santa's lap, telling him what he wants. It is adorable to see him change over the years. I know he will love having these recordings when he is grown up and has a family of his own.

But he is 9 this year and does not want me with him or recording his visit with Santa. His father is in the military, currently serving a second tour overseas. The last time he was gone, we sent the video to him. It would mean a lot to get anything from home.

I think that his father's absence has something to do with his desire to not have me see Santa. I think he is going to ask for his dad to come home. He tries to be a tough little man, but I think having his father gone is tearing him up inside.

Can I insist that I be allowed to be allowed to record when my son sees Santa? I have been getting conflicting advice from my friends and relatives.

Sincerely,

Recording Rebecca

Dear Recording,

There are many issues raised here that can be addressed with the law. Perhaps, they could be better handled with family counseling. Clearly, there is a lot of emotional turmoil in your family, which if not processed could lead to anger, resentment and a breakdown in communication. I pray that this does not happen.

Washington law prohibits recording any private conversation without first obtaining the consent of all the participants in the communication. There are some exceptions, such as when trying to prevent a crime, but there is not one for mothers of children. It should be noted that the video portion of the recording is acceptable; it's the sound that requires consent.

One can question whether a conversation with Santa is a private conversation. After all, it occurs in the middle of a mall with many people, including elves taking photos and people also waiting for Santa's attention. The court would look at the expectations of a reasonable 9 year old in that situation. I think it would be difficult for you to argue that your son does not have an expectation of privacy, given his voiced opposition.

While the statute does not allow recording without consent, you may be able to assert your right to parent into this situation. Parents are often able to consent on behalf of their children, even if the child denies consent. This parental right is seen countless times in doctor rooms when a wailing child his held down while given injections. Parents are presumed to know what is in the best interest of their children. Keep in mind that this is a presumption, meaning that it is a high probability. It is not an absolute.

Children grow up. They experience the world and react to it in ways that surprise us sometimes. Their interpretation of situations are often self-centered and short-sighted. He may not realize or understand the significance of the video on his future memories or his father's need to have ties to home. I urge you to get him some help. Otherwise, I fear your video may turn into a shouting match between you and your son. That wouldn't be good.

All of our service members and their families need support. This support can take on many forms. I know one proud father who sent his son daily postcards made from family photos so that his son and the people he served with would know more about the events and people that made this brave man the military brother they count on.

Glad tidings,

John

John Hartzell is a practicing Walla Walla attorney. No attorney-client relationship is established via this column, which is for educational purposes only and is not intended as legal advice. Any information given is to illustrate basic legal concepts and does not state how any court would decide any matter. Have question? Ask John at askjohn@wwub.com.

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