Electronic Spying in Family Law Cases

The advent of cheap and easily available devices to spy on your ex, or soon ex-to-be, makes it easy to do so. But tread cautiously. Legal, as well as equitable, pitfalls abound.

First, under Colorado law, it is a crime to record a conversation unless one party to the conversation consents to the recording. (Some other states require both parties to consent.) If you’re not a party to the conversation, recording that conversation is eavesdropping, a crime under Colorado law. The use of hidden cameras throughout the house also places you at risk of criminal charges. So, no, despite your suspicion that the other party is trying to alienate the children, don’t put a bug on the phone. Consider other means, like perhaps sending the children to counseling. Save the hidden cameras for Restaurant Stakeout and Bond movies.

Second, use of a GPS devices attached to a car, or placed in one’s purse, or otherwise use to track someone’s whereabouts, or the smartphone tracking apps, may subject you to possible criminal penalties for stalking, a class six felony under Colorado law. There is just no good outcome if you are caught doing this. Nothing in your divorce or parental responsibilities case is worth a felony charge. And if your significant other is trying to dial 911, whether or not that is unwise, taking the phone to stop the call is also a crime under Colorado law.

Third, there are keystroke recording programs for computers as well. But the courts do not care if your significant other is having an affair, so trying to record their chats on Yahoo Messenger is a waste of time. You may care, but the court does not. And to find out by breaking the law is foolish. (Besides, in my experience, if you simply wait a bit, the truth becomes self-evident.)

Third, please remember that the domestic courts are courts of equity. Electronic eavesdropping, or snooping, regardless of whether you are charged with a crime, would likely make the court view you as a bad actor, which will likely play into how the court views your testimony, or decides your parenting time or parental responsibilities. Spying on your ex-to-be is just not worth the risk.

Kevin Massaro is Special Counsel to The Harris Law Firm in Denver Colorado. Kevin handles family law cases involving divorce and custody. The firm has 20 divorce and custody attorneys in our Denver, Fort Collins, Englewood and Evergreen offices.