Technology and Custody Issues

Smartphones, smartwatches, tablets…

The use of “smart” devices has enhanced conflict in already contentious custody cases. In a recent case, a Philadelphia County Judge specifically stated in their Order that because the parents shared legal custody, they were both permitted to monitor the children’s electronic devices. Legal custody generally pertains to the right to make major decisions on behalf of a child or children including, but not limited to medical decisions, educational (ie. school choice), and religious upbringing. Now, decisions pertain more to just what camp a child may go to, but also the simple question (that turns out is not so simple) “Should our child have a cell phone?” In this particular case, like many others, the children had their own cell phone devices but had started using various social media platforms causing concern to the parents about who the children may be in contact with and content they may be sharing.

Whether or not a child is “ready” for a phone or smartwatch seems to be a missed opportunity for parents to communicate. It is not uncommon for one parent to obtain a cell phone for a child without first discussing it with the other parent. Best practice would dictate that all decisions related to the children should be made jointly (assuming parents share legal custody) not unilaterally.

Not only do cell phones and a child’s use of social media cause discord between parents, but smartwatches have also become a source of contention. Certain cell phone providers offer a kid-friendly smartwatch to customers. The watches are almost toy-like but allow parents to program limited contacts that the child can communicate with, which may be an option for a child who is not old enough to have their own cell phone. The use of the smartwatch becomes tricky, as it also doubles as a location device and parents have been known to surreptitiously send it with their child during the other parent’s custodial time without prior discussion or warning. In this scenario, I am frequently asked by clients “What do I do?” Parents struggle with the child liking the watch and having a cell phone-like device while feeling that the device is invasive and a means for the other parent to further monitor their custodial time. The conflict then becomes “Do I have to let them use the device?” and the answer is case specific.

Generally, if there has been no warning or discussion about the device, and if the parent is really opposed, then I will counsel them to take the device, put it into a drawer for their custodial period and return it with the child when they go back to the other parent. I also suggest that the parent initiate the conversation that should have taken place prior to the child showing up with a new device without warning.

While parents may not think they need the agreement of their co-parent if they want to provide their child with a cell phone, there seems to be a clear trend from the Courts in placing this issue under the umbrella of legal custody. Bottom line, issues such as whether your child is ready for a smart device should be a discussion between parents. And if the matter has to be addressed by the Court, it is more likely that in the case of shared legal custody, both parents will have as it relates to the use and monitoring of devices during their periods of custodial time, regardless of which parent obtained the device or who pays for it.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Stephanie Stecklair Tarantino


Stephanie is a family law attorney in Obermayer’s office in Doylestown, PA. She concentrates her practice in all aspects of family law, including divorce, custody, child and spousal support, equitable distribution, adoption,...

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