Family Law Questions? Ask a Family Lawyer Online.
My name is Brandon.
How old is your daughter?
7 years old, is that correct
I apologize... my "enter" key was sticking a bit. I believe that the issue has resolved. I ask this question just so I can understand the dynamic a bit better.
Did your daughter bring the photos to your attention, or merely that the texts could be viewed on the ipad?
In other words, did she show you that you could view the messages and you thought "let's take a look what's inside", or did show you the actual content and you thought "there's a problem here"?
That must have been mortifying. I'm so sorry. As a parent, I can understand and I think that most people would do the same thing out of concern for their child. However, it potentially creates an additional legal issue if you actually went into the texts to gather additional information. Please allow me to explain. Basically, there is a right to privacy in California, so it is technically unlawful to go into the text messages of your child's other parent without her permission in most situations. If the child accidentally goes in and pulls up a picture of a penis before showing it to you, that's clearly beyond your control and there would be no illegality there. However, once you enter into the private messenger service, that's basically where the line is crossed. It would be like walking through the door of someone's house--if it happens by accident, it's not a problem, but you generally can't go in without permission of the owner, even if the door isn't locked. All of that said, no responsible law enforcement officer would be interested in enforcing the law against someone just acting reasonably to protect their child, and no jury would like award the "victim" of such an intrusion anything for damages. The privacy laws are not designed to punish a parent for protecting their child--it would be an abuse of discretion, and the system takes those things into consideration...
So I'm bringing this to your attention first because the nuances of every situation are different, so this information should not be relied upon as complete or advice: invading someone's privacy can be a civil and criminal offense, and it is generally an invasion of privacy to go into someone else's text messages without their permission, but the context of such an invasion is considered and you have to do what you have to do to protect your child.Now, with that said, although law enforcement (police and/or child protective services) couldn't make such an intrusion themselves, nor could such evidence be used if they made the intrusion themselves, they CAN use the evidence and rely upon it if a private party makes the intrusion.
If you're not interested in taking this to the police or CPS, the only way is by filing for a custody order modification that includes drug testing for the mother. May I safely assume that she wouldn't consent to such an order?
Assuming that she would not agree to the testing, there has to be a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent. This evidence may include, but may not be limited to, a conviction within the last five years for the illegal use or possession of a controlled substance. Basically, you have to prove that there is a problem. You would file for a modified custody order and present whatever evidence you have.
If she would agree to the testing, you would still file for a modified custody order, but you wouldn't have to worry about evidence.
CPS has to investigate every allegation of child abuse or neglect, even anonymous allegations, so getting them to investigate isn't a problem. However, CPS isn't going to make her drug test without corroborating evidence of drug abuse, so you basically have to make a decision. You can present to them evidence that the illegal drug use is occurring, or you can report what you know and hope that their investigation of this "high functioning addict who manipulates the system" is enough to find the problem without your evidence.
Does that make sense?
Great. Have all of these answers been clear and helpful?
Super. Any other questions?
Best of luck to you. Take care.