Videotaping a Cheating Spouse in Georgia

Can I use videotape in my home to catch my spouse "in the act"? Video cameras and video surveillance are easily available these days, from high-priced HD security systems, to thumb -sized wireless cameras that can fit in a clock, teddy bear or other hiding place. It is tempting to use these devices to catch a cheating spouse "in the act" as evidence in a divorce or custody case. But is it legal to do that? And more importantly, can it be used as evidence? Most Georgians are familiar with the concept that recording people in private places is illegal, but until recently, the Georgia code protected so-called private "nanny cams". A Georgia House bill passed in 2000 included an exception for security cameras in the home. Security video shot in the home was legal, and could be used as admissible evidence in a civil custody or divorce trial if it met the requirements of the Georgia exception. This has now changed. In a decision last week, the Georgia Supreme Court announced that the exception passed in 2000 does not exist. How, you ask, could a law be "wiped off the books" like that? The trouble, as is often the case, arose in the legislature. Back in 2000, the House passed one version of the bill, and the Senate another. The House version included the "home security" exception, but the Senate bill did not. Oddly, both of them were allowed to become law, and published in the official code - thus we have had dueling versions for the last 13 years. The Supreme Court, in the case of Rutter v. Rutter, has now directly addressed this conflict, and held that the Senate version, adopted after the House version, fatally conflicts with the House version thus overriding and eliminating the home security exception. Alert lawyers will no doubt immediately let their clients know about this development, because taping in the home could result in criminal charges, and any video will likely be inadmissible in a civil divorce or custody proceeding. Hopefully we may expect the legislature to take up this issue soon. But if you have video shot in the home, or anticipate using such video you will need to talk to your attorney about whether it can still be used at all, or whether it must be destroyed.