Divorce Advice for Men | Fathers Rights Divorce | Child Custody

Question:

Is it legal to monitor the computer of a minor child not living with you?

My wife's ex has primary custody of their son. He has been caught enagaging in illegal activities, and his father has chosen to not be involved in addressing the situation.

He has a laptop that he brings when he visits us and uses on our home network. What are the applicable legal aspects with placing monitoring software on his computer, and with accessing it when he is with us, and when he is elsewhere, including at his father's residence?

Many divorced dads or men going through a divorce have considered taping conversations, monitoring emails, or installing keylogger programs to track your spouse's behavior.

But there are legal costs and benefits to using surveillance in family law cases that you will want to discuss with your lawyer first.

Watch Cordell & Cordell attorney Jennifer Paine explain to DadsDivorce.com editor Matt Allen the two main federal laws - the Federal Wiretapping Act (FWA) and the Electronic Communications Privacy Act and Stored Communications Act (SCA) - and what type of surveillance activity is allowed in common scenarios.

By Matt Allen

Editor, DadsDivorce.com

Do you have a suspicion that your spouse is cheating or hiding money from you? Well, think twice before you go through her computer and e-mails because you could end up spending five years in jail as one Michigan man has learned.

Leon Walker is being charged with a felony after using his wife’s password to login to her e-mail account to discover an affair, according to the Detroit Free Press.

Criminal charges are rarely brought from conduct in a divorce action, other than domestic violence, but a zealous prosecutor is using a Michigan statute to go after Walker.

By Jennifer M. Paine

Attorney, Cordell & Cordell

Note: This is part three of a three-part series on surveillance in domestic cases. Click here to read part 1 and click here to read part 2.

The Costs: “We can’t go on together with suspicious minds. . ..”

Keep in mind, these hypothetical surveillance situations only apply federal law. Your state laws may afford greater protections – i.e., prohibit more conduct – or mirror federal law. In particular, not all states apply the “consent exception” to state wiretapping laws like the Federal Wiretapping Act. 

That means, even though you are a participant to a conversation and would not violate the FWA if you secretly recorded the conversation, you may violate your state’s laws. Your best move is to err on the side of caution – forgo recording, wiretapping, tracing, monitoring, tracking, etc., altogether and always consult a lawyer in your state.

The costs could be great.

By Jennifer M. Paine

Attorney, Cordell & Cordell

Note: This is part two of a three-part series on surveillance in domestic cases. Click here to read part 1 and click here to read part 3.

The Situations

Could you commit a civil or criminal wrong simply by tape recording your spouse’s conversations, copying her e-mails, following her with a camera or doing any of the number of things your friends have suggested or you have seen in movies? Leaving aside my caveat that you should check the laws in your state, here are some common situations in which the federal laws do and do not apply.