Through Amazon, you can order a magnetic GPS tracking device for your vehicle. That is richly ironic given all the tracking technology Amazon uses on its own fleet vehicles. It sounds intrusive, right? Not at all. Under Virginia law, fleet owners can track their own fleets. But what if your ex wants to track you during parenting time? What does Virginia family law say about that?

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We Can Track Our Kids Legally

Parents worry. 

They worry about their kids, their jobs, their homes, their finances, their thinning hair.

They worry the most about their children: are they eating right, hanging with good kids, getting enough exercise, and brushing their teeth?

When parents split — separation or divorce or unmarried couples parting ways — parenting time becomes a big deal. Visitation (parenting time) allows each parent to continue building solid relationships with their children. The law even stipulates that both parents have a duty to keep their children involved with the other parent under Virginia Code § 20-124.3:

In determining the best interests of a child … the court shall consider the … propensity of each parent to actively support the child’s contact and relationship with the other parent …

Our technological society has invented programs to deal with children of separated parents. We have phone apps, book bag tags, and online therapy offerings.

All of these apps and gadgets are legal to use as ways to protect and help our kids because, in the eyes of the law, our kids own nothing.

It’s true; kids and their stuff are, essentially, our property. We can tag their clothes, put trackers on their bicycles, invade the phones we bought them, and make them sit in front of a screen and talk to a stranger for the good of their mental health.

Virginia law assumes parents do all these intrusive things for the best interests of their children. So does that same default mindset work when one parent tries to track the other parent?

Nope. 

Virginia law (and most states’ law) is very clear on the difference between tracking your child and tracking your ex.

Virginia Code § 18.2-60.5 lets Amazon off the hook for tagging its fleet vehicles. The same law lets law enforcement tag and track vehicles in fulfillment of official duties. It also lets parents and guardians snoop on their own children.

But let’s look at the exact wording of the law to see why one parent cannot track the other:

A. 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 1 misdemeanor.

B. 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; [our emphasis added]

The penalty for a Class 1 misdemeanor is, under § 18.2-11, “confinement in jail for not more than twelve months and a fine of not more than $2,500, either or both.”

While your ex may consider a fine of $2,500 the cost of keeping tabs on you, most adults cannot afford to spend a year in jail.

Can My Ex Force Me to Be Tracked?

If somehow one parent can talk the ex into allowing tracking, that is permissible. Suppose your ex presents you with some legal-looking paper and a GPS tracker. If your ex asks you (and does not coerce or compel you) to allow tracking while you have your own child for parenting time, you can sign away your right and let your ex track you.

We did not say it was a good idea. We did not point out how utterly invasive it is. We did not mention that your ex could easily and legally tag your child’s bags, shoes, phone, and clothes with GPS trackers. We merely pointed out that, legally, your ex can ask and you can agree.

Just how cozy is your relationship with your ex?

If you feel any hint that the deal is quid pro quo (tit for tat), that you will not get to spend time with Little Louie or Lovely Linda if you do not sign and accept the tracker, what your ex is doing is flatly illegal.

Coercion voids any premarital, marital, or postmarital contract under Code of Virginia § 20-151:

  1. A premarital agreement is not enforceable if the person against whom enforcement is sought proves that:
  2. That person did not execute the agreement voluntarily

If you get the sense — even implied by your ex — that the parenting time will not happen without you signing off on a GPS tracker, politely hold onto the paper offered, explain to your child that you will not be visiting then but will make up the visit later, and hightail your way to your family law attorney. Your attorney can file a motion against your ex for the unconscionable action of dangling your kid as bait in return for giving up your right to privacy.

Your Rights to Privacy Under Virginia Law

In the law, a casual expression is to “sleep on your rights,” meaning if you do not vigorously defend your rights, you risk losing those rights.

You have a right to privacy as a Virginia adult. Your child does not have that same right. If you thumb through the Code of Virginia, you will see rights to privacy for adults enumerated in all types of situations:

  • Health records
  • Genetic data
  • Online information (2023’s Consumer Data Protection Act)
  • Elections
  • Motor vehicles
  • Personal information (the Code has its own separate Act for this)
  • Freedom to use public spaces
  • Elementary and secondary educational records (your so-called “permanent record”)
  • Arrest and Blood Alcohol Content records
  • Institutions of higher learning
  • Financial disclosures

If you cede any of your rights to your ex, you might as well cede all of them. Only when you politely assert your rights do you stand any chance of holding onto them. Imagine being before a judge trying to explain why, the first half-dozen times, you grudgingly accepted a GPS tracker in your car so your ex could monitor you but then you developed a spine on the seventh parenting time session and said, “No.” You have already established a record of sleeping on your rights. That is a hard position to defend for any attorney.

You have to say, “No” the first, second and hundredth time. You cannot say, “No” to your ex putting Air Tags in Little Louie’s overnight bag or Lovely Linda’s Malibu Barbie house. But you can most certainly say, “No” to letting your spouse track you, your car, your phone, or your possessions.

Tracking Caretakers

A small section of § 18.2-60.5 says you may track a “caretaker” of your child. But Virginia’s Nineteenth Judicial Circuit in Commonwealth v. Blacker said parents are distinctly not caretakers. Tracking either parent using a GPS device is illegal. Further, neither parent can use audio recording of the visitation.

An ex cannot wire up your kids to record a parent’s rants, under Virginia Code § 19.2-62. That is a Class 6 Felony, which carries the following penalty under Code of Virginia § 18.2-10:

“a term of imprisonment of not less than one year nor more than five years, or in the discretion of the jury or the court trying the case without a jury, confinement in jail for not more than 12 months and a fine of not more than $2,500, either or both.”

You can turn on your kids’ GPS on their cell phones. You can, says the Nineteenth Judicial Circuit, place a tracking device on or in your own child’s:

  • vehicle
  • bicycle
  • coat pocket
  • backpack
  • sneaker laces
  • stroller

And pretending to track your child by placing a GPS tracker in your ex’s vehicle is illegal.

Consult with a Family Lawyer

Electronically snooping on your children and their other parent 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. Take care not to lose your own rights or infringe on the rights of other Virginia adults.

If your ex tries to track you, you may want to do something violent, illegal or unethical to your ex. Do not do it. Instead, connect with an experienced family law lawyer. Let the law protect you and your children. Legally, ethically communicate with us by calling 757-383-9184, or by contacting us online today. At The Firm For Men, our main goal is to protect your rights, preserve your quality of life, and safeguard your relationship with your children. Whether you are separated, divorcing, or ending an unmarried relationship, your kids must come first!