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Child Custody and Illegal Electronic Surveillance

An article published by ABC News in 2012 discussed the subject of child custody and illegal electronic surveillance. According to the article, the American Academy of Matrimonial Lawyers said that 80 percent of the top divorce attorneys in the country say they’ve seen an increase in the use of electronic data in divorces.


Since the publication of that article, technology has become even more accessible, advanced and invasive. The exponentially increased use of electronic data in divorces is now a given especially with all the new sources of personal information accessible from mobile devices, smart homes, security systems and vehicle telematic applications that were not available when the article was published. If anything, it’s even more likely that illegal electronic surveillance will be used in a divorce now than it was over a decade ago.


Last year, Harriet Newman Cohen, an attorney at NYC firm Cohen Stine Kapoor said:

“I always caution a client in a divorce to be aware that they may be being recorded or their movements may be being tracked. Every word may be being recorded and listened to—lawfully or unlawfully.”


Techniques and tools once accessible only to governments or corporations are now available to anyone. Spy gadgets are more accessible, affordable and easier to use. Suspicious spouses are taking investigations into their own hands. And it’s only going to get more and more likely that these techniques are applied to any divorce. Add a child custody dispute into a contentious divorce and parents will resort to using whatever means they have for an upper hand. Some methods for achieving that advantage are as old as Greek Mythology but with the added twist of surveillance technology.


Child as Trojan Horse?

“The one thing that’s exchanged between the warring parties is the child. So, the child becomes, in effect, some sort of Trojan horse.” said attorney John Kinney.


DIY spy gadgets like location trackers, voice-activated recording devices or motion-activated hidden cameras are typically less than $200 and easy for the parent to hide inside a child’s car seat, garment, bag or toy. Once the child is exchanged, and that device is inside the vehicle or residence of the opposing parent or caregiver, then location, audio and video data can be collected surreptitiously with devastating consequences.


Duke Lewton has been the target of such a Trojan Horse. During a contentious custody fight over his seven-year-old daughter, whose mother planted a recording device inside of a stuffed animal and told her to always carry it, Mr. Lewton discovered that his private conversations with his daughter over an entire weekend were recorded by his wife. Then there is the Utah woman who hid a recording device in a diaper bag to spy on her ex-husband while it was his turn to care for their child. She got away with it nine times before she was caught.


This topic is more common than many realize and begs the question,


Am I at risk for electronic eavesdropping?


Electronic eavesdropping is not as far-fetched as you might imagine. According to this New York Post article, 1 in 5 spouses used spy gear on their partner prior to divorce.


Gerry Lane, a marriage counselor in Atlanta, says almost every infidelity case he sees starts with a spying spouse. “If someone begins to have thoughts that they are being betrayed, they become obsessed with finding out the truth.”


Randy Kessler, an attorney based in Atlanta, says candidly about his clients’ use of electronic surveillance:


 “I see it in their eyes. I tell them: ‘Don’t do it.’ But they still do it. And you know personally, if it was in my life, I’d be tempted.”


Susan Myers, an attorney based in Houston, says, “I have little power over a client’s curiosity. More often than not, they’ve already done the [illegal] act by the time they show up to my office.” Her firm will not accept it as evidence because then she too would be subject to criminal liability for wiretapping and intercepting electronic communications.


Lawyers may claim that they can’t prevent their clients from using digital spying, but some are willing to accept such evidence and will even present it in court to help their client’s case. Other lawyers don’t want to get near it. Two Virginia family law attorneys were publicly reprimanded in 2022 after they allegedly failed to intervene following a court order to stop a client from conducting illegal surveillance of her husband’s private conversations during their pending divorce case.


Harriet Newman Cohen says:

 “Legally recorded audio or video recordings showing a parent mistreating a child, speaking abusively to a child or neglecting a child’s needs speak volumes. This sort of legally obtained evidence of poor parenting is useful to a mental health professional and to the court and can also bolster the credibility of your own client and show your client’s skill at and fitness for parenting.”

 But, Cohen warns:

“A parent who is constantly recording, or who records a child, may be frowned upon by the court in a custody action. Courts like the children to be left out of the maelstrom.”

Determining what custody resolution is in the best interest of the child depends on a child’s relationship with his or her parents. Documenting how your spouse speaks to or treats your kids may seem imperative. It is important to consult your attorney before involving your children in any effort to capture recordings for use in a legal dispute. If you think your spouse may attempt to use your child as an avenue to get audio video recording devices into your residence or vehicle then you should consider some precautions which may include a bug sweep.


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