Is it Stalking to Photograph Your Ex- While Driving By

[wtfnow]

My question involves criminal law for the state of: Florida

My ex and I have a legal custody agreement that states if either one of us is caught drinking or doing drugs on a week that we have custody of our 2 year old that the other parent automatically gains full custody (my lawyer's idea). I know for a fact she has still been drinking when she has him and on occasion has continued to illegally use oxycontin and cocaine... Now, here's my question...

In our agreement it states that any photographic evidence (stamped with a time and date) can be used as proof of a violation. However, say I or someone I know happens to be driving by a location, notice her car, and see her drinking outside and take a picture of it. Could the evidence be thrown out since the photograph wasn't taken by a licensed private investigator or by a member of law enforcement? Could the person taking the photograph be charged with stalking if the photo is taken from the street? How could someone go about getting such evidence without having to hire a private investigator and still have the evidence hold up in court without being throwin out for being obtained "illegally" since the person taking the photograph might be considered stalking?

[Mr. Knowitall]

Taking a picture of somebody drinking an unknown liquid from a glass would signify all of what? That they were thirsty?

If you're following somebody around and photographing them, or hiring others to do so (the cost of which would quickly become prohibitive), you should expect them to explore their legal options.

[aardvarc]

My ex and I have a legal custody agreement that states if either one of us is caught drinking or doing drugs on a week that we have custody of our 2 year old that the other parent automatically gains full custody (my lawyer's idea)

A fun notion, but assignment of custody comes from a judge and ONLY a judge, regardless of what you might mutually agree. The agreement MIGHT convince a judge to alter custody, but nothing is ENFORCEABLE until it's signed off by the judge to make the change.

In our agreement it states that any photographic evidence (stamped with a time and date) can be used as proof of a violation. However, say I or someone I know happens to be driving by a location, notice her car, and see her drinking outside and take a picture of it. Could the evidence be thrown out since the photograph wasn't taken by a licensed private investigator or by a member of law enforcement?

Evidence and it's admissibility can always be challenged, even if taken by a PI or LEO.

Could the person taking the photograph be charged with stalking if the photo is taken from the street?

Not unless other circumstances were present. Anyone visible in a public place doesn't have a right to privacy. If you can be seen, you can be photographed.

How could someone go about getting such evidence without having to hire a private investigator and still have the evidence hold up in court without being throwin out for being obtained "illegally" since the person taking the photograph might be considered stalking?

Stalking includes an element of fear, and in Florida, generally requires a PATTERN of behavior which would put a reasonable person in fear. If the ex doesn't even know the photos were taken until court, there's no element of stalking. The hard part you'll face here is that drinking, in and of itself, isn't generally doing to be grounds for anything in a custody case, UNLESS there has been some EXTREME problem with drinking that is directly related to the child(ren) in question. Doing illegal drugs may be a different matter, but unless there's something in place like probation, courts don't alter custody because an adult has a beer or a drink in public. Then, you'll have the burden of proving what's in the photograph. I can hand a toddler an empty beer can and take a photo of it. Can you prove that the baby drink what was in the can just because they had the can in hand? Can you prove it was beer, or any other liquid in the can? See where that's headed?

[Dogmatique]

Knowing how easy it is to change the settings on any sort of digital camera, how exactly is this going to actually be admissible according to the actual court rules (versus your "agreement")?

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Additionally, I cannot see custody being changed if Dad has one single beer on Father's Day, for example.

Not. Going. To. Happen.

[wtfnow]

A fun notion, but assignment of custody comes from a judge and ONLY a judge, regardless of what you might mutually agree. The agreement MIGHT convince a judge to alter custody, but nothing is ENFORCEABLE until it's signed off by the judge to make the change.
Evidence and it's admissibility can always be challenged, even if taken by a PI or LEO.
Not unless other circumstances were present. Anyone visible in a public place doesn't have a right to privacy. If you can be seen, you can be photographed.
Stalking includes an element of fear, and in Florida, generally requires a PATTERN of behavior which would put a reasonable person in fear. If the ex doesn't even know the photos were taken until court, there's no element of stalking. The hard part you'll face here is that drinking, in and of itself, isn't generally doing to be grounds for anything in a custody case, UNLESS there has been some EXTREME problem with drinking that is directly related to the child(ren) in question. Doing illegal drugs may be a different matter, but unless there's something in place like probation, courts don't alter custody because an adult has a beer or a drink in public. Then, you'll have the burden of proving what's in the photograph. I can hand a toddler an empty beer can and take a photo of it. Can you prove that the baby drink what was in the can just because they had the can in hand? Can you prove it was beer, or any other liquid in the can? See where that's headed?

Well, what I was thinking is this... see, the court documents have already been signed by the judge and the agreement is already in effect. if she is caught, i get full custody.. there was a pattern of drug abuse and drinking brought up in court, which is why it was placed in our custody agreement. If i had someone take photos of her drinking, or perhaps i may be able to obtain photos of her drinking that can be seen in public, then afterwards i could call and have a wellness check performed on my son, but beforehand i could show the court documents to a police officer. i already spoke with an officer and showed him the court documents and he said that if i show the documents to an officer before he does the wellness check he will also check to see if she has been drinking and if she has, he will write up a report. So... I would have the photos as well as a police report as evidence, is what I am hoping for.

- - - Updated - - -

We've already went through court and had the judge sign off on the agreement that states everything we are supposed to be doing. I also have a restraining order against her which is discussed within the agreement. She is not allowed to come within 500 ft of my house, for example, or she violates the court order.

We are currently on a probationary period for a year and a half until we go back to court. During that period, if either one of us violates the court order, the other gets full custody... I paid over 18 grand for my lawyer. I had a really good one.

[Dogmatique]

I hope you think so, because no matter what the judge has signed you might just find that some of these things are not actually enforceable. Or rather, the family court will not enforce.

Seriously.

[wtfnow]

I hope you think so, because no matter what the judge has signed you might just find that some of these things are not actually enforceable. Or rather, the family court will not enforce.

Seriously.

So then exactly what is the point of having so many agreements put in place? Such as the random drug screening that I have the option of giving her once every two weeks if I decide to call her lawyer? According to our agreement, if she fails or does not take the drug test within a 48 hour period, I get full custody... All of these things are useless, is what you're telling me because the judge can later on decide to do whatever she wants?

[Dogmatique]

What matters is whether things like these are actually legal in the first place and whether they infringe on the rights of the parent or go against public policy.

Seriously, an agreement that says "If parent does X, Y or Z or doesn't do A or B, the other parent gets full custody" may not actually hold up in court.

Some exceptions are, "If custodial parent moves out of state, custody will revert to the other parent". Things along those lines. And even those are NOT common.

However, you can always speak to your attorney to guide you further.

[wtfnow]

What I guess I should do is just wait until I have some evidence and then ask my lawyer's advice... enough evidence that would matter (such as a police report, arrest, etc) and not just simply rely on photos, although the photos might be good to have later on when a new decision is being made to determine who gets primary custody during our son's school years.... I can understand what you're saying by your last statement. I supose I was just hoping it would be easier to get full custody now with the court orders in place.

[Dogmatique]

I'm sorry, I'm not sure you're understanding about the photographs.

What do they prove, exactly? How will you prove that they were taken at that time/date? It's so incredibly easy to change the time/date stamp on a camera - heck, I could throw a party and invite my kids and their adult friends, and backdate the photos to five years ago when at least two of them would have been under-age.

See where I'm going with this?

Photos rarely prove anything at all, in reality, unless they're taken by police etc.