Parents worry about their children. Whether divorced, married, never married but parenting, the adults worry about the kids. Are they eating healthily? Are they hanging out with nice friends? Is my non-custodial ex-spouse taking them places they should not be? Sometimes that worry goes a bit too far, as in the case of using modern technology to intrude on parenting time with the child’s other parent.
Learning to Let Go
Part of the frustration both parents feel, once one household turns into two, is that neither can ultimately control the other’s parenting style. Think about it: when you were both parents under one family roof, if one of you did something with the kids that the other parent did not like, you could talk about it, resolve it, and solve it.
When Mom is in Virginia Beach and Dad is in Norfolk, neither knows precisely what the other parent is doing, saying, or allowing around the children. Parenting time is an exercise in trust, for both parents. If the separation or divorce ended badly, that trust can be hard to extend.
If a court order compels visitation (parenting time), you both have to honor it. Yet sometimes, the temptation to keep a firm (if electronic) grip on your kids is too strong. You end up resorting to spyware, GPS tracking devices, or other intrusive electronic snooping.
What is Reasonable is not always Right
As Florida’s Sixth Circuit Court explains, “Each parent is entitled to know where the children are during visitations. They should also know if the children are left with other people such as babysitters or friends when the other parent is not there.”
Yet that entitlement does not extend to intruding on another adult’s right to privacy. It is reasonable and legally right that you should know where your children are; it is not reasonable and not legal for you to use audio and camera recording to track the movements of your children or their other parent.
What Does Virginia Code Say about Tracking Parenting Time?
Virginia does provide for one carve-out to this, based on the idea that parents have a right to know their children’s whereabouts. Code of Virginia § 18.2-60.5 stipulates the two edges of this sharp-cutting law:
Any person who installs or places an electronic tracking device through intentionally deceptive means and without consent, or causes an electronic tracking device to be installed or placed through intentionally deceptive means and without consent, and uses such device to track the location of any person is guilty of a Class 3 misdemeanor.
The provisions of this section shall not apply to the installation, placement, or use of an electronic tracking device by:
… 2. The parent or legal guardian of a minor when tracking (i) the minor or (ii) any person authorized by the parent or legal guardian as a caretaker of the minor at any time when the minor is under the person’s sole care; …
Reading the law carefully, you see that you can track your own children or, if turning them over to a babysitter, the caretaker.
The children’s mother and father are not “caretakers,” as shown by Virginia’s Nineteenth Judicial Circuit in its Virginia v. Blacker case. You cannot track the children’s mother by sticking a GPS device on her bumper. You cannot wire up your kids to record their Mom’s rants about you.
You can, under § 18.2-60.5, activate your children’s GPS on their cell phones. You can, says the Nineteenth, place a tracking device on or in your own child’s:
- coat pocket
- sneaker laces
You cannot, though, track the child’s mother by wiring up her car while pretending you are only attempting to track the child.
Recording audio in Virginia without the consent of the person being recorded is illegal. Under Virginia Code § 19.2-62, recording “oral communication” (conversations the children’s mother has with the children, strangers, or other adults) is a Class 6 felony.
This is why the whole topic of electronically snooping on your children and their mother, or she snooping on you, is legally dicey. Most lay folk will not know the fine points; consulting a family law attorney (before taking the law into your own hands) is the best strategy.
Right or Rights?
Though parents have rights under Virginia law to know where their children are, exercising some rights may, in some cases, not be right for your situation.
Instead of surreptitiously snooping, talk to the children’s mother. Explain that you want to know where the children are, just as she would. Rebuilding (or strengthening) the trust between you two is the right thing to do, whether or not you have a legal right to track the kids.
Call Our Virginia Beach Custody Attorneys
With our digital age, communication is a telephone call away at 757-383-9184, or by contacting us online. At The Firm For Men, we recognize the great advantages modern technology provides, but also the legal challenges that same technology can bring. We zealously protect the rights of Virginia’s men and fathers, both to know where their children are and to preserve their privacy. Please contact us today with your questions about electronic tracking, child custody, parenting time and more.