Parents have an obligation to keep their children safe and to make sure that a child’s naiveté does not put them in harm’s way. At the same time, most parents want to encourage some level of independence to help develop a child’s decision-making skills. In today’s society, with the prevalence of cellular phones, text messaging, instant messaging, and the like, the question of a parent’s right (and in some cases, obligation) to monitor their children’s phone use frequently comes up.
The general rule is that a parent is able to monitor their children’s cell phone use, including the text messages that have been sent and received. This can be done in a number of ways. The easiest way for a parent to view a child’s text messages is to simply scroll through the child’s phone. Parents can also view a log of all of the messages sent and received in most carriers’ monthly billing statements or online. There are also apps that allow for parents to monitor a child’s phone activity remotely.
Thus far, we have discussed monitoring a child’s cell phone activity to keep tabs on with whom they are talking and what they are saying. However, if a parent wants to use text messages in a New York family law proceeding, other issues may arise.
For example, the situation may arise in the context of a divorce or custody case, in which one parent spouse hopes to introduce into evidence a text message sent by the other spouse to one of the couple’s children. In this case, the spouse hoping to use the text message may encounter several hurdles.
First, authenticating the text message may be difficult unless there is a way to prove who actually sent the message. In some cases, simply showing that a certain number sent a text message is not sufficient to attribute that statement to the person who owns the phone. Another potential issue is that the text message may be considered inadmissible hearsay. As a general rule, out-of-court statements cannot be admitted unless an exception applies. Thus, one spouse’s text message to a child may be deemed inadmissible.
Finally, there is the issue of the privacy of the sender. Federal law prohibits the sale or transfer of cell phone records, including text messages. The idea behind the law is that both sender and receiver have a right to privacy concerning text messages. Thus, a parent will not likely be able to obtain official copies of text messages from a service provider without a subpoena or unless a court orders the service provider to present them.
The bottom line is barring a court order that says something different parents are most likely able to monitor their children’s cell phone activity. However, if a parent intends to use the message in any kind of legal proceeding, they should consult with an attorney. Also, there could be issues raised where the monitoring of another parent’s conversations with the child could be considered parental interference. It could have negative consequences for the monitoring parent. Whether the monitoring is appropriate or required can depend on the facts of the specific case.
Contact a Dedicated New York Family Law Attorney
If you are currently dealing with a New York family law issue, contact the Law and Mediation Offices of Darren M. Shapiro. Attorney Shapiro is an experienced New York divorce attorney who has dedicated his career to helping people dealing with complex and emotional family law issues. Whether you are dealing with child custody issues, divorce or separation, or adoption, Attorney Shapiro can help. Call 516-333-6555 to schedule a free consultation with Attorney Shapiro today.
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When Is It Appropriate for a Judge to Order Spousal Maintenance for Longer than Suggested by the Guidelines?, Long Island Family Law and Mediation Blog, August 1, 2018
Is Business Income Factored into a New York Court’s Post-Divorce Maintenance Award?, Long Island Family Law and Mediation Blog, August 10, 2018