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Spying Through the Smartphone

Dear Carolyn,

I am a mother with primary custody of a nine-year-old daughter. The father has visitation. For Christmas, he bought our daughter a smartphone for Christmas, but he did not discuss this with me. He had spyware on the smartphone that allowed him to see her opening the Christmas present.  I thought that he disengaged the spyware after she opened the present, but I just found out that the spyware is still engaged on my daughter’s phone. This smartphone allows him to track everywhere we go.  He told our daughter to be sure to keep the phone with her, particularly when she is with Mommy. His spying makes me feel eerie. We are divorced, so why does he want to know where I am? What should I do?

 

Carolyn Answers…

Your questions raise many interesting issues:  What age should a child receive a smartphone?  What do you do about mobile tracking and spyware?  What do you do about controlling behavior after the relationship is over?

The age a child should receive a smartphone is child specific. A child’s first phone should not be a smartphone, but merely a cellphone that allows the child to call 911 and home, but the parent should block other uses of the phone  that might be appropriate for a nine-year-old. I would not allow a nine-year-old to have a smartphone, at least not unsupervised. As the child progresses into a smartphone, the parent should block all access to pornography and other inappropriate sites. I would also block access to violence.  Parents also have to decide how much texting is healthy for their child. There are several phone designed especially for children. You might look at www.mashable.com for “7 Best Cellphones for Kids”.

It is unclear in your question if you are calling the “location” service of a smartphone spyware, or if there is a particular additional spyware program on the smartphone. You can turn off the “location” service under “settings”.  Spyware is another issue. You may want to engage a digital forensic examiner to review the phone and preserve evidence, particularly if you think a crime may have been committed.

I am concerned that your ex told your daughter to “keep the phone with her, particularly when she is with Mommy”. It appears you ex wants to know where you are. Why does he want to know? That is controlling behavior in the best case. You should be alert to any other controlling or harassing behavior because this conduct could be a red flag. For example, does he drive through your neighborhood? Stalking is both criminal and domestic violence. Keep your eyes open.

 

Dear Carolyn,

I was angry at that father who bought the child the smartphone to monitor “Mommy” in your July 9 column.  What can the mother do to stop this?  Can she get custody?

– No MORE Spying

 

Dear No MORE Spying,

I believe that the mother from the July 9 question had primary custody, so the real question probably is:  what can be done against spying if there is already a custody order and the spy is spying on the parent with primary custody?  This answer will not include opportunities for criminal prosecution, if any, which can be discussed with the magistrate.

There are two legal possibilities, other than the practical one of simply removing the phone from the child and substituting a child-safe telephone. First, a victim might try for a domestic violence protective under the concept of a continuing harassment.  I think you will get varying results from judges.  Second, you could ask for a custody modification or a restraining order in the child custody action.  Neither of the legal options are as attractive to me as simply removing the smartphone from the young child.

In Hassell v. Hassell, the North Carolina Court of Appeals recently affirmed primary custody for a mother where the father had given an eight-year-old a smartphone loaded with spyware.  The court considered the bad behavior of spying in awarding the father less time with the child.

 

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This blog is a revised excerpt from Ask Carolyn 2, now available on Kindle.

Send your questions on family law and divorce matters to “Ask Carolyn…” at askcarolyn@rhinotimes.com, or P.O. Box 9023, Greensboro, NC  27427.  Please do not put identifying information in your questions. 

Note that the answers in “Ask Carolyn” are intended to provide general legal information, and the answers are not specific legal advice for your situation.  The column also uses hypothetical questions.  A subtle fact in your unique case may determine the legal advice you need in your unique case.  Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by “Ask Carolyn.”

Updated 4/10/18.