Just two weeks ago, I wrote on this blog about how sometimes, it takes the law a while to catch up to technology. Specifically, I wrote about a case that held that flying a drone over your spouse’s home and remotely accessing her computer and devices attached to her home network could be considered domestic violence.
Just two weeks later, another Appellate Division case came down finding that the use of air tags and hiding a listening device in an infant child’s bag could be domestic violence too. Specifically, on February 10, 2026, the Appellate Division issued an unreported (non-precedential) opinion in the case of M.P.M. v. K.S. that included this holding.
Now, the result is not shocking because in 2011, I blogged about how putting a GPS device on your spouse’s car could be domestic violence. That said, air tags are just the newest form of tracking technology, far easier to plant than having some professional affix a device to someone’s car.
Given this, in MPM, it was surprising that the trial court denied the father’s request for a Final Restraining Order (FRO) based upon the mother surreptitiously planting both a listening device and AirTag in the 2-year-old child’s bag. The decision calls these “allegations” but mom did not deny that she did it. She justified it claiming that she did it to ensure the child’s safety, while also denying that she intended to surveil or track dad.
Dad appealed and the Appellate Division not only reversed, but actually found that the domestic violence alleged occurred, and remanded the matter for a new FRO hearing before a different judge.
When dad filed for his TRO, he referenced the AirTag and listening device. In an amended TRO, he added a claim for harassment (why not stalking?) because he found a GPS tracking device attached to his car. He also included prior acts of domestic violence – specifically battery.
Interestingly, at the FRO hearing, dad called mom as his first witness and she admitted to two occasions where she placed an audio recording device and an AirTag in the child’s backpack and lunch box “… to record plaintiff’s interaction with the child, and specifically to make sure that the child was not in distress or harmed in any way during plaintiff’s parenting time.” She acknowledged that she did not tell dad of these things. She also admitted that her private investigator put the GPS device on dad’s car.
Parenthetically, the recording device raises issues regarding illegal wiretap but that is a discussion for another day.
Mom denied ever punching, choking, kicking or pushing dad, but she was confronted with a text message of apology and admitted to previously attending an anger management class at dad’s request.
She also denied seeing a letter from dad’s lawyer sent after the AirTag was found the first time stating that “should she ever again try to track [plaintiff’s] whereabouts, she will face a TRO.” Personally, I don’t think that some needs to state that they don’t want to be tracked or stalked, however, the fact that the letter was sent goes to the issue of harassment because it evidenced that dad was “alarmed” or “annoyed” – two buzzwords in the statutory definition of harassment – by mom placing the AirTag.
In denying the request for a FRO, as to the predicate act of harassment, the trial court found the placement of the listening device in the child’s backpack did not constitute harassment because it was not done with the purpose to harass dad because mom had placed the devices there to make sure the child was “not in distress” when with dad. More distressing is that the child court totally misapplied the law when it held that:
“the reality of it is [defendant] didn’t want him to find it . . . so it’s impossible for anyone to prove that she was doing that . . . for the purpose to harass defendant.”
As to stalking, despite the GPS device and AirTags, a seeming belt and suspenders approach to stalking, the trial court found that dad did not demonstrate that plaintiff sought to follow him. The trial court further noted:
“I think it’s pretty obvious that the only purpose that the defendant had was to monitor his whereabout, not to do something to come harm him. And therefore, I don’t feel that there is any argument with respect to him reasonably fearing for his safety or the safety of a third
party or suffer any emotional distress.
The Appellate Division reviewed the law and noted, as I blogged yesterday, that the statute was amended in 2024 to include coercive control among the statutory factors courts must consider in determining whether to issue an FRO. Paragraph c in the statutory definition of coercive control includes:
“(c) monitoring the person’s movements, communications, daily behavior, finances, economic resources, or access to services; (Emphasis added).
The Appellate Division then noted that since mom admitted to planting the listening device and AirTag on at least two occasions, the question really was whether she lacked the requisite intent to harass or stalk dad.
The Appellate Division then went one further and rejected the trial court’s findings and legal conclusions that dad did not establish that mom intended to harass him by plaintiff the recording device and AirTags. The Appellate Division noted:
“Guided by the law and our standard of review, we are not persuaded that defendant’s explanation why she hid the listening device and AirTag in the child’s bags is solely indicative of her claimed purpose to ensure the child’s safety. We note that during her testimony, defendant did not dispute that her former counsel advised her that on finding the first AirTag in the child’s bag in June 2023, plaintiff expressed his concerns for his safety because of defendant’s “escalating, irrational, and unfounded recent behaviors,” and essentially asked
defendant to cease and desist any further similar acts. Plaintiff argues that as a result of his letter to defendant, she was well aware of plaintiff’s concerns for his safety and his right to seek a TRO, yet she persisted in her conduct.
Under these circumstances and based on our de novo review, we reject the court’s findings and legal conclusion that plaintiff did not establish defendant intended to harass him when she planted additional audio recording devices and AirTags in the child’s bags. Accordingly, in considering the elements of the predicate act of harassment, we are persuaded the court erred as a matter of law in concluding that plaintiff did not establish defendant’s conduct constituted harassment based on “a course of alarming conduct or of repeatedly committed
acts with purpose to alarm or seriously annoy such other person.” N.J.S.A. 2C:33-4.
The Appellate Division then did the same regarding the trial court’s analysis of stalking holding:
“We similarly reject the court’s analysis and conclusion that plaintiff failed to establish the predicate act of stalking. Plaintiff maintains “defendant’s conduct also falls squarely within the plain language of the [s]talking statute because she maintained a physical proximity to [plaintiff] directly, indirectly, or through third parties, by any action, method, device or means, monitoring, observing, surveilling.'” (Emphasis omitted) (paraphrasing N.J.S.A. 2C:12-10(a)(1)). Plaintiff avers the court’s finding on stalking is more “perplexing” given the court’s finding that defendant’s express purpose ‘was to monitor [his] whereabouts.'” The stalking statute reads:
A person is guilty of stalking, . . . if [the person] purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress. [N.J.S.A. 2C:12-10(b).]
“Course of conduct” for stalking is defined as:
[R]epeatedly maintaining a visual or physical proximity to a person; directly, indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about, a person, or
interfering with a person’s property. [N.J.S.A. 2C:12-10(a)(1) (emphasis added).]
Guided by the above standards and legal principles, we reject the court’s analysis and conclusion plaintiff failed to establish the predicate act of stalking based primarily on the court’s finding that plaintiff’s testimony lacked credibility. In reaching this conclusion, we take the rare step of rejecting the court’s credibility findings—with respect to plaintiff’s testimony—because in our view, the court’s findings are not supported by the record. See State v. Locurto, 157 N.J. 463, 474 (1999).
In addressing the finding that mom didn’t have a purpose to harass because she didn’t want dad to know, the Appellate Division addressed the trial court’s illogical misapplication of the law in this regard, holding:
“The court also misinterpreted the statute by focusing on defendant’s alleged subjective intent in planting the devices, which she maintains was to ensure the child was safe, rather than to track plaintiff. This same issue was addressed in State v. Gandhi, where our Supreme Court held:
we do not discern a legislative intent to limit the reach of the anti-stalking statute to a stalker-defendant who purposefully intended or knew that his behavior would cause a reasonable person to fear bodily injury or death. Rather, we read the offense to proscribe a defendant from engaging in a course of repeated stalking conduct that would cause such fear in an objectively reasonable person. We view the statute’s course-of-conduct focus
to be on the [alleged surveillant’s] conduct and what that conduct would cause a reasonable victim to feel, not on what the [surveillant] intended. [201 N.J. 161, 170 (2010).]
….
Whether defendant intended plaintiff to be in fear of his safety or experience emotional distress is irrelevant in determining the predicate act of stalking. Rather, the issue is whether defendant purposefully engaged in a course of conduct, and separately, whether that conduct would cause “a reasonable person,” not necessarily plaintiff, “to fear for his safety or the safety of a third person or suffer other emotional distress.” N.J.S.A. 2C:12-10(b).
The Appellate Division went further to note that the use of the AirTag, listening device and GPS were precisely the type of technology contemplated by the stalking statute, the discovery of which would cause a reasonable person to fear for their safety.
Quite frankly, it is unfortunate that this case was not reported (precedential) because issues like these arise all of the time. Either way, this case is another example of the law catching up to the technology.
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