Spy vs Spouse, Part II

Spy vs Spouse, Part II

Posted By Megan McClinton, Marietta Family Law Attorney || 28-Apr-2016

My last blog post was about a spouse “spying” on the other, using recording techniques and hacking software. I think that the main theme of that blog post was to emphasize the fact that just because something seems like a good idea, doesn’t mean it’s a good idea. I myself love clients who are involved and proactive, however some evidence just isn’t admissible. Where evidence comes from and how you got it just might make that evidence inadmissible in court, meaning that the judge will never hear it. Furthermore, violating Georgia’s wiretapping laws could land you in jail!

I did want to also address video recording your spouse. You know how on America’s Funniest Home Videos, innocent bystanders or people not involved in the action always have their faces blurred? That’s because they haven’t consented to their image being used in the recording. Georgia’s laws mirror this: Georgia is an “everybody must consent” State – either everyone in the video consent to the recording, or otherwise it could be a crime.

But wait. What about those parents who set up nanny-cams to capture abusive nannies and caretakers?! Are they criminals? Well, Georgia allows for video recording someone without consent if you’re doing it for security or safety purposes. This means that putting the nanny-cam up may be okay if it was for the purposes of security and safety.

So, how could that play out in divorces? Well, in the case of Rutter v. Rutter (2012), the trial court held that a wife’s video recording of her husband within the home to gather evidence was not unlawful because of the “curtilage” exception in OCGA 16-11-62, which is the “safety and security” exception I mentioned above. This provision says that it’s not a crime to record the activities of persons within the curtilage of the residence of the person using the device for “security purposes, crime prevention, or crime detection.” The Georgia Supreme Court has noted, though, that Georgia laws on this issue are somewhat conflicting. It seems like there are two competing pieces of legislation regarding video recording people without their consent, and they contradict each other. This means that in the future, there is the possibility that this exception as it applies to domestic cases could change.

So, that gets me thinking. Adultery is a crime in the state of Georgia – a misdemeanor. So, a spouse video recording the activities of the other within their home may actually be lawful AND passable evidence under the “curtilage” exception to Georgia’s video recording laws. Although, as I wrote last week, the admission of these videos may be up to the discretion of the judge, so… Govern yourself accordingly!

Like that ever helps, right?

Megan McClinton

Categories: Family Law

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