Divorce always brings a variety of challenges, but perhaps one of the most complex aspects is navigating the boundaries of post-divorce parenting. As co-parents, you want to keep your child safe while respecting their privacy and autonomy. You also want to be sure not to break the law while trying to protect your children. What if you suspect your ex is tracking your child during their time with you? Violations of surveillance laws and stalking laws can result in severe consequences, including jail time. One of the most common privacy questions that arise in post-divorce parenting is, “Can my ex track my kids when they are with me?”
Tracking with GPS, tracking people with Air Tags, or tracking people with other location services is generally against the law. However, there are exceptions for tracking devices used by law enforcement agencies or by parents and guardians tracking their own children. Tracking your children during the custodial time of the other parent is perfectly legal in some instances, and tracking your children is illegal and can make you subject to criminal punishment in other circumstances. Balancing the benefits of technology for safety and security with the potential risks to privacy is always a good idea when using tracking technology in co-parenting situations.
Quick Answers
- Navigating post-divorce parenting requires a careful balance between the privacy rights of the other parent and taking the steps that are necessary to protect your children.
- Understanding legal boundaries regarding tracking children and respecting privacy rules is necessary when taking such steps to protect your children.
- Establishing a parenting plan with provisions for electronic communication, location disclosure, and access to your children through phone calls and text messages can help provide clarity on these issues from the outset.
- Developing communication strategies with the other parent can help create parenting plans that prioritize the best interests of the children. Fostering trust and open communication between co-parents is one way to eliminate the need for invasive tracking methods and other stalker-like behaviors.
Navigating the Boundaries of Post-Divorce Parenting
Co-parenting after a divorce can be a balancing act, especially when it comes to ensuring your child’s safety in consideration of privacy laws. You may worry about your ex-partner monitoring your child during visitation using an electronic tracking device, or you may think that such behavior is perfectly acceptable.
To navigate this situation, consider following these steps:
- Communicate with your child and the other parent before initiating any tracking. Discuss the reasons behind it and address any concerns or misunderstandings. Tracking without evidence of safety concerns or another basis to do so is not always considered to be reasonable.
- Be open to listening to the other parent’s concerns about tracking. Understand their perspective and try to come to a compromise that respects everyone’s privacy. Is there an alternative where you can have good information about your child’s whereabouts without necessarily being able to access the child’s exact physical location at all times?
- If you encounter difficulties in reaching an agreement, consider seeking permission from the judge by filing a Motion to Permit Tracking of Minor Child. Family law lawyers can provide legal advice on your rights and obligations during either parent’s parenting time, and a divorce lawyer can help you create a parenting plan that addresses your right to information while balancing privacy concerns.
Remember, the safety and best interests of your child should always be the top priority in co-parenting situations, even when one parent takes the lead in certain aspects. This includes one parent facilitating a negotiation in terms of legally allowed tracking of your children. Terms for location disclosure can be included in your custody agreement. Drafting provisions for electronic communication can often allow you to track your children, and such provisions can also serve as a substitute for knowing your child’s exact physical location. Controlling access to your child’s phone may also serve as a justification for your right to track your children.
Legal Limits on Tracking Children During Custodial Time
The laws regarding tracking vary by jurisdiction and depending on the facts of the individual situation, and it’s essential to be aware of consent laws, court orders, and potential consequences of unauthorized tracking. The right to do so and the consequences for doing so when prohibited are contingent upon consent regulations, court orders, and potential repercussions of unauthorized tracking.
Understanding Consent Laws
Consent laws significantly influence the extent to which you are permitted to track your child during the custodial time of the other parent. These laws dictate the requirements for parental agreement to tracking and safeguard privacy. Consent laws for tracking devices can also be applied differently within the same jurisdiction. The method of tracking matters, since all states have laws governing GPS tracking. The exact wording and rules may differ, meaning non-GPS tracking may be subject to different rules than GPS tracking. Unauthorized tracking of a child can have severe legal implications. It may be classified as stalking under state laws and may be a basis for the person tracked to obtain an Order of Protection.
Violations of consent laws can have serious consequences. For instance, in Illinois, it is considered a crime to track your ex without their knowledge or consent. This can result in hefty fines and even imprisonment. Frequently, the determination of whether you committed a crime by secretly tracking your children through a tracking device, such as GPS, comes down to a matter of a legal and factual interpretation. People often ask the question, is tracking my children legal, and the answer is usually yes if the tracking only involves learning of the location of your minor children. However, many judges interpret the behavior of tracking your children as the same as tracking your ex, because it is essentially the same thing when you know that the children are usually at the same location as your ex.
When Court Orders Permit Tracking
Situations that might constitute a safety risk that would permit tracking include cases involving criminal activity, child custody disputes, or threats to someone’s safety or well-being. Your jurisdiction and individual circumstances may cause the rules to vary widely, so you should be sure to consult with a family law lawyer about your case before taking any steps related to tracking.
In terms of the criminal laws that prohibit or allow tracking, the rules do not apply to the police or they apply in a completely different way. Law enforcement agencies have ways of tracking children and adults without their knowledge or consent. Typically, tracking done by police requires a judge’s approval or Court order for the tracking to be constitutional. The legal procedure for implementing a court order for tracking by law enforcement almost always involves the issuance of a warrant by the court. Law enforcement must obtain a warrant to track an individual’s location or collect phone location data as evidence for trials, and the government must acquire a warrant to access an individual’s cellphone location history.
Court orders have allowed for tracking in cases such as location monitoring as an alternative to pretrial detention and imprisonment, electronic tracking devices, and global positioning system (GPS) monitoring as a condition of release or probation. In other words, defendants in the criminal justice system often consent to being tracked or monitored by GPS, because it can be a way to avoid incarceration.
When Tracking your Children is Allowed in Divorces
Creating a co-parenting plan that specifically allows you to track your children is the most direct way to establish that you are allowed to track your children during the other parent’s visitation. This involves drafting provisions for electronic communication and negotiating terms for location disclosure for safety purposes while still respecting the privacy of all parties. This includes establishing guidelines for phone calls, messages, and other electronic communication between parents and children during visitation is an important part of protecting your child’s safety.
Generally, both parents should have reasonable phone access to the child, including the non-custodial parent. Consult your custody agreement, and be sure to have a good understanding of all the terms outlined in the custody agreement that pertain to electronic devices, communication with the child, and information the parties are entitled to regarding the child’s location when with the other parent. In some cases, court orders, such as a custody order, may authorize tracking of a child under specific conditions, such as when there are concerns of abuse, neglect, dependency, termination of parental rights, or other situations where the Court intervenes to ensure the child’s safety and welfare. The typical process to ask for permission to track your child’s location is by way of motion.
You can file a motion with the Court to request permission to know the child’s location, however, the Court must find that allowing location access is in the minor child’s best interests. When determining if tracking is in the child’s best interests, courts consider factors such as the child’s safety, well-being, and overall best interest, as well as the parents’ ability to provide for the child’s needs and maintain a healthy environment.
How To Tell When You Are Being Tracked
Tracking the location of children is becoming more common among divorced parents, in addition to monitoring of phone usage for inappropriate content or messages. A co-parenting plan that incorporates communication guidelines can help make sure that both parents and the child have the right to communicate via telephone, to know where their children are at, and that the child’s privacy is respected to the extent appropriate. A co-parenting agreement can also be tailored to specifically prohibit the ability of a parent to track the location of the children during the other parent’s custody or visitation time.
If you suspect unwarranted tracking of your child, it’s necessary to take steps to protect their privacy and safety. This includes the possibility of obtaining a restraining order, a stalking no-contact order, or an Order of Protection against the person engaging in inappropriate tracking or other stalking behavior.
Signs You Are Being Tracked By Your Spouse or Ex-Partner
Look for evidence of tracking devices or unusual behavior from your ex-partner that may indicate tracking. Potential signs of tracking without consent may include:
- Requests for personal information that are sudden or pressing
- Alerts or notifications on your device that are unfamiliar
- Unexpected packages or objects discovered in your child’s bag
- Poor satellite signals or signal disruption on your phone
- Bluetooth trackers or AirTags that have not been installed by the user
Another indication that you or your child’s phone may be tracked includes the following:
- Clicking sounds, static, or distant voices during phone conversations
- A decrease in phone performance (Do you notice your phone suddenly operating very slowly?)
- An unexpected change in battery life, such as rapid draining battery life
- Unexplained or unfamiliar new apps on the phone
- An increase in data usage reflected in your apps or your phone bill
To detect a tracking device on a vehicle, you can:
- Use a detector device that can scan both the inside and outside of the vehicle
- Deploy Radio Frequency detectors or so-called “bug detector” devices
- Conduct a visual inspection of the car from front to back, and get assistance from someone familiar with vehicles
Technology and Tracking: A Double-Edged Sword
Allowing parents to locate their children in the event of an emergency enhances safety and security for the minor child. Providing real-time information about the child’s location. On the other hand, demanding the location of the child with the other parent can lead to overly aggressive behavior and foster mistrust between co-parents. If you suspect that your ex-spouse is tracking your location or engaging in other invasive tracking, consulting a family law attorney is an important step to preventing such harassing behavior and allowing you peace. Another downside of tracking with location services is that it usually is usually not cooperative, and it overlooks other essential aspects of co-parenting, such as open communication and developing a healthy relationship with the child
Summary
Remember, the key to successful co-parenting is striking a balance between safety and privacy while building trust without surveillance. Offering parents peace of mind by enabling them to easily monitor their children’s whereabouts is often a good idea, but doing so can result in risks to your own safety under the wrong circumstances. Divorce and custody lawyers can help you navigate the complexities of post-divorce parenting and address tracking concerns pertaining to invasive tracking, including filing restraining orders or seeking remedies for privacy violations.
Navigating the complexities of post-divorce parenting and addressing tracking concerns can be challenging, but with the right guidance and resources, you can protect your child’s privacy while fostering trust and open communication between co-parents. By understanding the legal limits on tracking children during custodial time, creating a co-parenting plan that respects privacy, and seeking attorney advice for co-parenting disputes, you can ensure the safety and well-being of your child while maintaining a healthy co-parenting relationship.
The legal framework regarding a non-custodial parent’s rights to access their child’s device may differ depending on the jurisdiction and the particular situation. Generally speaking, a non-custodial parent may be entitled to access their child’s device if it was purchased by the non-custodial parent and if there is a court order or agreement in place that allows for such access. It is highly recommended to seek advice from a legal professional to gain a thorough understanding of the rights and obligations that apply in your jurisdiction.
Consult with Family Law Attorney Zachary Townsend
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