By Sally Vazquez Castellanos
Published on Sunday, September 20, 2026 at approximately 9:06 pm.
A child’s photograph was once largely understood as a family keepsake. Today, photographs, videos, voice recordings, communications, location information, and other personal data exist within a technological environment in which information can be copied, distributed, analyzed, altered, combined, and potentially used to create increasingly detailed representations and profiles of individuals.
The law is confronting these capabilities while the technology itself continues to change.
For parents involved in divorce and child-custody proceedings, California Civil Code § 3344 provides one useful point of reference. The statute protects specified attributes of identity from certain unauthorized commercial uses. But the emerging implications of artificial intelligence, synthetic media, smartphones, applications, and increasingly extensive data collection reach considerably beyond traditional right-of-publicity doctrine.
The larger concern involves identity, consent, privacy, technological power, institutional capacity, and the protection of children in a rapidly changing information environment.
California Civil Code § 3344
California Civil Code § 3344 addresses the knowing use of another person’s name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for specified advertising or commercial purposes without the required prior consent.
For minors, the statute expressly addresses consent by a parent or legal guardian.
Section 3344 does not prohibit every unauthorized depiction or use of another person’s identity. Its application depends upon the statutory requirements and the circumstances surrounding the use.
Nevertheless, the statute provides an important starting point for the present discussion: identity itself can constitute a legally protected interest.
That principle assumes greater significance when technology can potentially do more than reproduce an existing photograph or recording.
From Photograph to Digital Identity
Artificial intelligence and related technologies are changing what can be done with ordinary personal information.
A photograph traditionally documented an image at a particular moment. Today, photographs, video, voice recordings, communications, location information, search activity, and other data may collectively contribute to an increasingly detailed digital history of an individual.
For children and adolescents, this development deserves particular caution.
Children may accumulate substantial digital histories before they are capable of understanding how that information may later be used. Parents, schools, platforms, applications, entertainment companies, and other institutions may possess photographs, recordings, communications, location information, and other data concerning them.
A smartphone illustrates the scale of the issue. For adolescent girls and women, a device may also contain highly sensitive reproductive-health information generated through menstrual-cycle or fertility applications. Such applications may contain information concerning periods, fertility, pregnancy, symptoms, and related health matters. Health information voluntarily entered into an ordinary consumer application is not necessarily protected by HIPAA merely because it concerns health; the applicable protections depend in part upon who collects and maintains the information and which laws apply.
This adds another category of sensitive information to the substantial amount of personal data that may exist on a device or with application and cloud providers. Depending upon the circumstances and applicable law, information may also become relevant to discovery, subpoenas, legal process, government investigations, or disclosures to other third parties.
The point is not that menstrual-cycle applications routinely provide information to law enforcement. The more fundamental concern is that individuals may not fully understand what information is being collected, where it is stored, who may have access to it, how long it is retained, or what legal protections govern it.
The long-term consequences of combining different categories of personal information with increasingly powerful artificial-intelligence and data-analysis systems remain unsettled.
Technological capability, institutional safeguards, public understanding, and meaningful human consent do not necessarily develop at the same speed.
Divorce and Parental Authority
The issue becomes more complicated when parents separate or divorce.
Section 3344 recognizes parental or guardian consent for certain commercial uses involving minors. Family law, however, separately governs parental authority and custody.
California custody law centers the health, safety, welfare, and best interests of children. Matters involving a child’s digital identity therefore may implicate considerations extending beyond whether one parent provided consent to a particular commercial transaction.
Custody orders, allocation of legal decision-making authority, contractual rights, entertainment law, privacy protections, and the circumstances surrounding the use of a child’s identity may all become relevant.
As technology develops, disputes concerning children’s online identities may increasingly become part of the broader discussion surrounding parental decision-making.
Social Media and Digital Replication
Parents routinely publish photographs and videos of their children online. Public availability, however, should not automatically be conflated with unrestricted authorization for subsequent commercial or synthetic uses.
Viewing a photograph, reproducing it, commercially exploiting a likeness, digitally altering an image, and using audiovisual material to construct a synthetic representation are different activities that may implicate different legal rights.
Artificial intelligence makes this distinction increasingly important because existing photographs, video, and audio can potentially become source material for representations of conduct the individual never performed.
For children, the consequences may extend far beyond the moment at which the original photograph or recording was created.
Technology Is Moving Faster Than Institutions
There is reason for restraint in predicting how courts should address these problems.
Artificial intelligence is developing rapidly. Legislatures, courts, schools, law-enforcement agencies, families, and the general public are simultaneously attempting to understand technologies whose capabilities may change substantially within a relatively short period.
Much of the population cannot reasonably be expected to possess the technical expertise necessary to distinguish among authentic content, manipulated content, algorithmically generated content, conventional digital editing, and increasingly sophisticated synthetic media.
Nor should institutions be presumed immune from these difficulties.
Courts depend upon evidence. Law enforcement depends upon reliable information. Schools make decisions affecting children. Employers make decisions affecting livelihoods. Technology platforms distribute information at extraordinary scale.
Mistakes within these systems can have serious human consequences.
Misinformation, Disinformation, and Trust
Artificial intelligence enters an information environment already struggling with misinformation and deliberate disinformation.
Synthetic media may further complicate that environment because photographs, recordings, and video traditionally have carried significant persuasive force. The ability to alter or generate realistic audiovisual material potentially weakens assumptions once associated with seeing or hearing something for oneself.
The opposite danger also exists. Growing public awareness of artificial intelligence may make it easier to challenge authentic information simply by asserting that it was digitally created or manipulated.
For family courts, this creates an especially difficult problem.
Custody proceedings can involve allegations of abuse, substance misuse, threats, harassment, parental interference, and other highly consequential conduct. Electronic communications and recordings may become important evidence.
Courts and counsel therefore may increasingly confront disputes not simply over what evidence means, but whether electronic evidence represents what it purports to represent.
The appropriate institutional response is still developing. That uncertainty should be acknowledged rather than minimized.
Technology Does Not Operate Outside Existing Social Problems
Artificial intelligence also develops within institutions already confronting longstanding concerns involving racism, discrimination, unequal access to resources, and unequal treatment.
Technology does not automatically eliminate those problems.
Systems may reflect limitations in underlying data, assumptions embedded in design, decisions concerning deployment, and the institutional environments in which they operate. At the same time, claims of technological bias, discrimination, or manipulation require careful factual examination rather than assumption.
For family law, the concern is particularly important.
Custody determinations affect fundamental family relationships. Parents may differ substantially in financial resources, technological literacy, language proficiency, access to experts, and ability to challenge sophisticated electronic evidence.
If digital evidence becomes increasingly complex, the ability to understand and contest that evidence may itself become an access-to-justice concern.
Digital Identity and Family Conflict
Technology may also be misused within interpersonal and family conflict.
Manipulated photographs, fabricated communications, voice imitation, impersonation, or other forms of synthetic media could potentially become part of already contentious family disputes.
These circumstances move beyond the traditional commercial focus of § 3344 and may implicate family law, domestic-violence law, privacy, evidence, or criminal law depending upon the conduct involved.
The concern should not be overstated. The existence of artificial intelligence does not establish that particular evidence has been fabricated, and an allegation of manipulation does not establish that manipulation occurred.
But neither should institutions assume that traditional methods of evaluating electronic information will necessarily remain sufficient as technology evolves.
Where authenticity is genuinely disputed, provenance, context, corroboration, preservation of original material, and appropriate technical analysis may become increasingly important.
Where children are involved, the need for care is particularly significant.
Protecting Children Without Pretending the Law Has All the Answers
California Civil Code § 3344 provides an established legal mechanism addressing certain commercial appropriations of a person’s name, voice, photograph, and likeness. It therefore contributes to the developing discussion surrounding children’s digital identities.
It should not, however, be asked to carry more weight than the statute was designed to bear.
Artificial intelligence and modern data collection implicate privacy, consumer protection, family law, evidence, domestic violence, criminal law, civil rights, contract law, entertainment law, cybersecurity, and potentially constitutional protections.
The resulting legal landscape remains fragmented.
That fragmentation matters because technological innovation does not wait for legal institutions to reach consensus.
Innovation can produce substantial social benefits. But enthusiasm for rapid technological development should not substitute for careful consideration of foreseeable misuse, institutional limitations, discrimination, misinformation, security, privacy, and the rights of people whose identities and information become part of these systems.
This is particularly important when those people are children.
A Cautious Approach to the Child’s Digital Identity
The concern is not that every photograph will become a digital replica or that every use of artificial intelligence presents a threat.
It is that the technical capacity to collect, analyze, manipulate, and reproduce aspects of human identity is developing faster than many individuals and institutions can reasonably understand or regulate it.
Children occupy a particularly vulnerable position within that transition.
They may have little control over the information created about them, limited understanding of how it is distributed, and no meaningful ability to anticipate technologies that may later make new uses of photographs, voices, videos, communications, location information, health information, or other data collected during childhood.
Divorce and custody disputes add another layer because parents may disagree over disclosure, commercialization, technological use, or protection of their child’s identity and information.
California Civil Code § 3344 provides one established legal reference point by recognizing protection for specified attributes of identity in the commercial context.
The emerging challenge is considerably broader.
As artificial intelligence develops, lawyers, courts, policymakers, technology companies, parents, and the public will have to confront the limits of existing institutions while remaining attentive to longstanding problems involving discrimination, unequal power, misinformation, privacy, security, and technological misuse.
There is no reason to assume that the answers will be simple.
There is every reason to proceed carefully where children, identity, information, and family relationships are concerned.
Sources and Further Reading
California Civil Code § 3344 — Right of Publicity. California statutory protection governing specified unauthorized commercial uses of a person’s name, voice, signature, photograph, or likeness, including provisions concerning minors.
California Family Code §§ 3011, 3020, 3044. California statutory provisions addressing the best interests of children, health, safety and welfare considerations, and the effect of findings of domestic violence upon custody determinations.
California Rules of Court, Rule 5.252 — Virtual Visitation. Effective January 1, 2026. Establishes guidelines for parenting plans and court orders involving virtual visitation, including consideration of safety, the child’s circumstances, and access to technology. (California Courts)
California Department of Justice, Office of the Attorney General — Reproductive Health Information and Health Applications. California DOJ has advised that the Confidentiality of Medical Information Act may apply to mobile applications designed to maintain medical information, including certain fertility trackers, and has emphasized privacy and security obligations associated with reproductive-health information. (California Attorney General)
U.S. Department of Health and Human Services, Office for Civil Rights — Protecting the Privacy and Security of Health Information on Personal Cell Phones and Tablets. HHS explains that HIPAA generally does not protect health information stored or entered into personal mobile applications unless the information is being handled by a HIPAA-covered entity or business associate. HHS also discusses the collection of location and other personal information by devices and applications. (HHS.gov)
Federal Trade Commission — Flo Health. FTC enforcement materials concerning allegations that the Flo period and fertility-tracking application disclosed sensitive health information to outside analytics providers after representing that such information would remain private. (Federal Trade Commission)
Federal Trade Commission — Premom Ovulation Tracker. FTC enforcement materials concerning allegations involving the disclosure of sensitive fertility, reproductive-health, location, and device information to third parties. (Federal Trade Commission)
U.S. Department of Health and Human Services — Mobile Health Applications. Federal resources addressing the intersection of mobile health applications, HIPAA, privacy, security, and other federal regulatory requirements. (HHS.gov)
Judicial Council of California — California Rules of Court, Title Five, Family and Juvenile Rules. Current California court rules governing family-law proceedings, including children’s participation in family court and virtual visitation. (California Courts)
Legal Disclaimer
This article is provided for general informational and educational purposes only. It does not constitute legal advice, address the circumstances of any particular case, or create an attorney-client relationship. The legal and technological issues discussed continue to develop.
Research and AI Disclosure
This article was developed by Sally Vazquez Castellanos with research and drafting assistance from ChatGPT, an artificial-intelligence system developed by OpenAI. Primary legal authorities and factual sources should be independently reviewed before reliance.