Sharing parental rights and responsibilities can be a difficult adjustment. Parents may struggle with not knowing what happens while the children are with the other parent. In some cases, they may imagine unsavory scenarios, like a parent taking the children out of state and failing to return, or taking the child to a new romantic partner’s home and leaving them unattended.
Parents frequently rely on technology to help monitor their children and ensure their safety. It is relatively easy to activate an app on a phone or a tablet, for example, that allows a parent to check in and see the exact location of their children at any time. They could even potentially use recording devices or “nanny cams” to check on how the children behave when they are at home with the other parent (if the parties are separated in the same house).
The question is not, “can one parent use technology to track or monitor their children while they are with their other parent in a shared custody scenario?” The question is: should they?
People have a reasonable right to privacy
While it is natural to worry about the safety of children when they are not physically present, parents have to learn how to trust one another when they share custody. State rules and prior court rulings affirm that co-parents generally have a right to privacy and to be free from digital attempts to track them while they are with their children.
Some states laws prohibit recording people without their consent, so the use of electronic audio or video recording devices to monitor a co-parent is very likely a violation of the law. State regulations also address the use of GPS devices to track an individual’s location without the consent of the individual subject to tracking. Generally speaking, in Virginia, it is not illegal to record a live conversation, but it is illegal to intercept an electronic communication. Even where it is not illegal, there are laws the preclude the admission of such records into evidence. Also in Virginia, it is a crime to GPS track a vehicle that you are not title owner to, and it’s inadvisable regardless of legality.
Then, regardless of legality, is perception. The recordings you make have to be disclosed in discovery, and often times these recordings backfire on the recording party. Judges do not like to see parents recording one another (or their children), and they can come down hard on parents who appear to be needlessly tracking their child’s whereabouts.
Occasionally, when there are legitimate reasons to fear parental misconduct, such as kidnapping, it may be possible to allow for GPS tracking specifically via mobile devices in a parenting plan (though there are other, less invasive ways, a Court may try to prevent kidnapping first). If one of the children has special needs and a tendency to wander, tracking their location could be a crucial part of a safe parenting plan. However, parents who have not negotiated those terms with one another typically have to abide by the law.
Privacy protections generally prohibit location tracking and recording people without their knowledge and consent. Adjusting to shared custody takes time, and those who know the rules that limit their conduct in such arrangements can avoid mistakes that can put them at a legal disadvantage.
