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A Word from Scott Shaw: Invasion of Privacy

The right to privacy is recognized by the State of Georgia. This means if your right to privacy is violated, you can sue for damages in Georgia courts. You can also obtain a protective order for stalking, and an invasion of privacy can in some circumstances be criminal as well.  This said, the right to privacy is not absolute in the State of Georgia.  In a child custody or divorce case there are legitimate reasons to surveil a party and do things that may invade their privacy.  Use of GPS devices, recording phone calls, video taping, surveilling a person.  When is invading someone’s right to privacy allowed and not allowed in a Georgia divorce or child custody case?

Obtaining Evidence Through Surveillance 

It’s important to understand when, and why, invasion of privacy might be warranted if done properly. For example: 

  • Tracking another person using a GPS device
  • Following someone
  • Watching someone outside their home
  • Recording Phone Calls

Using a GPS device on another person’s car is frequently done.  It can lead to a civil lawsuit.  However, if the car is in your name, or the GPS is placed on the car when it is in a public place, and your reason for using a GPS device is legitimate to uncover evidence in a case that is relevant to the best interest of your child, or to adultery, or tracking marital assets, a GPS device on someone’s car in the State of Georgia may be legal.  In fact, one Georgia Supreme Court decision has gone as far to say that a person waives their right to privacy on certain issues once they put the best interest of their child at issue in a lawsuit.  Therefore, more invasive surveillance methods, such as having a person followed, or watching their home may be justified (where in other circumstances it may not be) if you are involved in a child custody or divorce matter (or if you are preparing for a case).

It should be noted, that although many means of surveillance that may invade another person’s privacy depend on the context and specific circumstances, it is ALWAYS legal to record your phone call with another party in the State of Georgia, you don’t even have to tell them. 

Some Methods of Surveillance are Seldom or Never Legal

By either Federal or State statutes, some methods of surveillance are never legal.  As an example, although it is always legal to record your own phone calls without permission of the party on the other end in the State of Georgia, it is never legal to record someone else’s phone calls without the permission of both parties on the call.  

Other means of surveillance can be problematic, and will be unlawful (possibly criminal, and subject to civil lawsuit against you).  Some such means such as electronic recording devices, key loggers on your computer, intercepting cellular signals, taking video inside the home or private place of another, hidden cameras or microphone in a non-public place, can be very problematic.  Talk to an attorney first!  

One means of surveillance that catches many people is use of the password of another person.  Hey, they gave me their password, right?  Yeah, but except for certain circumstances on a shared computer, once your relationship ends, so does your permission to use their password.  An area to be careful with.  

Legal Avenues for Collecting Evidence

Although Georgia has an action for invasion of privacy, in which you can sue another for invading your privacy, your right to privacy is not absolute.  Georgia is more open than most states in allowing legitimate means of surveillance, for legitimate purposes.  And this is the key.  Except for some methods of surveillance that are always unlawful, Georgia allows reasonable invasions of privacy, and even goes as far to waive the right of privacy in divorce and child custody cases where the best interest of the child, or other issues in a divorce such as adultery or locating assets have been made an issue in the lawsuit.

In a child custody or divorce case in Georgia, a party implicitly waives their right to privacy when the issue of the well-being of your child is being investigated.

What You Need to Know

Here are the main three points to consider: 

  1. You must have reasonable suspicion
  2. You can only investigate with necessary invasiveness to ascertain the well-being of your children and gather the evidence needed
  3. You must use means of investigation that are not prohibited as criminal behavior or subject to a civil lawsuit for damages

Your Right to Privacy

It’s important to know that you have a right to privacy and you can protect yourself if that right is invaded. You may even be eligible for compensation if your right is violated. At the same time, you need to understand that the invasion of privacy under certain circumstances is not prohibited. When properly executed and deployed, you can be legally surveilled, watched, recorded, and tracked. The information obtained can be used against you in a court of law in a child custody or divorce case. 

If you have any questions about your right to privacy, or to surveil in the State of Georgia, we would be happy to speak to you.