Privacy, confidentiality and social media

When I was in high school, one girl had a cell phone. It was in her car, and the rest of us thought her parents were nuts.  Typically, we called our parents from pay phones and only if we had been in an accident or our cars had broken down.  No one carried cameras around, so didn’t take pictures of what we were doing at parties and we didn’t call to say we would be late for curfew.  Our parents found out what we had been up to the old-fashioned way, either by confession, from other parents, or from the rumor mill.  We found out about our parents problems the same way – they told us they were divorcing outright and we heard rumors about other kids’ parents.

Don’t mistake me, I am not defending the past and I am far from a technophobe.  But the past’s lack of easy access to cell phones allowed, perhaps even caused, much to be private that is shared today.

Today’s parents and their children have the gift of close contact.  But in return for that gift, we have exchanged privacy and the ability to keep secrets within a small group.  This can have devastating consequences to a family law case.

Just a quick look at any so-called “entertainment” website shows just how quickly a couple’s private concerns become public knowledge when unfortunate photographs or posts appear on social media.  Although most of us aren’t famous (or worse, infamous!), we still don’t want our families and friends to dig through our private trauma the way the public digs through the tribulations of the Kardashians, the Michael Douglases, or Russell Brand and Katy Perry.

Consider the impact of the following on your custody or divorce case:

  • Pictures of your underage teenager at a party with a bottle of what appears to be beer in her hand.
  • Pictures of your two-year old son on the back of your motorcycle without a helmet, while you were on the road.
  • Comments by your best friend, showing up on your social media site, discussing the “good time we had, you were so drunk!!!!” and dated on a visitation weekend.
  • Your new status post, “Looking for a hot man, for hot loving!” posted while you are still married.

Do these seem outrageous?  Let me assure you, these and much worse have been seen on social media by attorneys like me, who are asked to defend child custody, child visitation, divorce and alimony cases.

I suggest that anyone considering a divorce or custody action carefully  review their social media profiles and disclose that content to their attorneys.  Evidence from social media is discoverable and may be admissible at trial. If you have already posted things that might not paint you in the most flattering light, the best thing for you to do is, stop posting and seek the advice of an experienced family law attorney who can assess your situation and help you determine your best path forward.

 

 

 

Fair or Equitable?

When I was a teenager, I would bemoan the fact that something or another wasn’t “fair.”  The teacher wasn’t fair.  My friends weren’t being fair, the rules for college admission weren’t fair. Whatever it was, it wasn’t “fair.”  My mother, after listening to my litany, responded (more than once), “Who told you life was fair?”

That, in a nutshell, summarized my mother’s matter-of-fact worldview.  Her calm and cool delivery of the line let me know that if I didn’t like a decision, grade, or other “unfairness,” I should be prepared to fight against it as best I could, or I should accept it and move on.  Either way, it was up to me.  I don’t remember her ever trying to convince me that something was fair.  She expected me to learn it for myself, although she would sometimes play Devil’s Advocate.  I don’t think the idea of equity ever came up, and if it did, I’m sure I believed they were the same thing.

In family court, there is an inherent difference between “fair” and “equitable.” Think of fairness as equality between the parties.  It’s what happens when I go buy ice cream for the family and everyone gets exactly one cup of ice cream.  Doesn’t matter how large or small the person, and it doesn’t matter who did their homework or their chores around the house.  I bought ice cream for the family, and all members get an equal, fair share.

Equity, on the other hand, takes into account what contributions members of the family have made before doling out anything to the various members.  Equity seeks justice among the parties. If I buy ice cream for the family, but someone was completely lazy all week and didn’t do any chores and other members had to do their work, why should the lazy person get the same as the ones who worked harder? Shouldn’t the harder workers get a little extra as a reward?  Or maybe instead, I’ll put some whipped cream on their ice cream, but none on the lazybones’ ice cream!

See, in equity, we can reward the harder worker, or the one who contributes more, with a little extra in recognition of the extra contribution.  But sometimes, to do so, we may have to take a little “ice cream” from the one who didn’t contribute as much.  If the family has a lot of extras (like whipped cream) it doesn’t hurt as much.  But in a family with fewer resources, the person who gets less because they contributed less will inevitably feel the pinch when the other party is award more in acknowledgement of their greater contributions.

South Carolina Family Courts are courts of equity.  Marital property will be equitably divided.  If you are seeking a divorce, be sure to find a family law attorney who is skilled in assisting clients in preparing valuations and other tools for use in equitable division of their assets.

Child Custody – Who will my child live with after divorce?

Possibly the most frightening aspect of a divorce is the issue of child custody.  When parents decide to separate and ultimately divorce, who gets custody of the children? Do judges automatically give custody to the mother? What if the mother is an unfit parent? What if the father works a shift schedule? What if neither parent can care for the children adequately after a separation – can grandparents step in?

Custody decisions can be settled between the parties, mediated with the help of a professional mediator or decided by the court at a final hearing.  Generally, when the parties reach a settlement, the court will not interfere with its terms, absent a clear violation of law, testimony that one of the parties was coerced or under duress at the time of making the agreement, or a finding that the settlement is not in the best interest of the children.  The parties will be questioned regarding the terms of the settlement, as will the Guardian ad litem, if one was appointed in the case.

The trend in South Carolina has been away from sole custody, in which one parent, usually the mother, gets custody of the children and the other parent, usually the father, gets visitation on a standard schedule.  The past few years have seen more awards of joint custody, with the parents sharing some combination of physical and legal custody of the child.  One parent is designation the primary custodian with whom the child shall reside, and the other parent has “liberal visitation.”  The non-custodial parent is sometimes denominated “the secondary custodian,” meaning, essentially, that should something happen to the primary custodian, the secondary custodian doesn’t have to go before the court to take custody of the children. The primary custodian generally had decision-making authority over the children’s health, education, religious, and extracurricular activities, although the parties can decide to share these responsibilities in any combination, dependent upon their ability to work together reasonably.  Emergency decisions are generally made by the parent having physical custody of the child at the time of the emergency, so as to get the child care as quickly as possible.

This type of custody plan may be distinguished from split custody, which is sometimes used in multi-child families.  In split custody, one parent takes custody of at least one child and the other has custody of the remaining children.  This is sometimes seen in cases where the mother is awarded custody of the infant children and the father is awarded custody of the teenagers or where the mother gains custody of the daughters with the father gaining custody of the sons.  Split custody is rarely the preferred custody, as the courts presume that children of a marriage should be raised together absent compelling evidence that split custody is in their best interests.

Sole custody is preferred in cases where the non-custodial parent is unfit or cannot be located, having deserted the family.  Sole custody is a relic of a time when fathers were the sole breadwinners in the family and all mothers stayed home and cared for the children full-time.  Sole custody was predicated upon the idea that children were not as bonded to their fathers as they were to their mothers.  Of course, in today’s families many mothers work full-time, some fathers are the stay-at-home caregivers, and the range of “normal” for families is completely different than fifty or even thirty years ago.  South Carolina courts recognize this in the changing preference toward joint custody.

    Among the considerations in custody awards are:

  • The best interests of the child
  • Which parent has been the primary caregiver
  • Whether either parent has engaged in immoral conduct that has a direct negative effect on the children
  • Evidence of domestic violence in the home, including evidence of which party is the aggressor
  • Evidence of unfitness, including drug abuse or habitual drunkenness, suicide attempts, inability to care for oneself, and other behavior tending to put children at risk
  • The education and parenting skills of the parents
  • The health and ages of the parents
  • Who is best able to foster a good relationship with the other parent
  • The support system, including extended family, that surround the parents
  • The opportunities for education, extracurricular opportunities and other benefits the child will have living with each parent
  • The child’s wishes
  • The parents’ wishes

Only a qualified and experienced attorney can adequately explain the law as it applies to a particular case.  If you are considering divorce and concerned about child custody, ask for a consultation with a family law attorney.

Trust your attorney – you paid her to take care of your case

You came to the consultation. We talked. We discussed the basics of your case.  I explained how I work and told you my retainer fee.  At some point you paid the retainer and we signed a retainer agreement.  I am your attorney for the case.

We explored possible means to accomplish your goals.  I explained the law to you.  I gave you my opinion as to the best way to proceed.  You decided to think about it, and left my office.  But then you decided to get the opinions of your friend whose been through the “same thing”, your mother, another friend who works in an attorney’s office, and so on.  Based on their input, you called me.  You said THEY were sure you are entitled to more than I had informed you of, that the law was clearly in your favor, and that no judge would ever find in favor of your spouse.  In fact, we need to go straight to a hearing because there is no need to settle because a judge will just think you are weak.

Virtually no attorney will resent a prospective client seeking the opinion of other attorneys prior to engaging an attorney on a matter.  The issue I raise here is of clients engaging an attorney to represent him in a case, then seeking “second” opinions from non-attorneys.  Non-attorneys are not authorized in South Carolina, by statutory law, to give legal advice.  In addition, once an attorney has been engaged on a case, many of the issues are of a sensitive and even confidential nature.  Clients should be aware that even the most well-meaning friend or family member may accidentally reveal confidential information or case strategy to the opposing party.

You have fallen victim to what is variously termed the “Greek Chorus”, “Cheerleader Squad”, or “Friends & Family Network.”  They are there not only to support you in your hour of need, but to make dang-sure you get everything that’s coming to you! And they will help you fight tooth-and-toenail until you do.  Even when you think about giving in, their job is to stir the pot until you boil over again.  Because they aren’t gratified until that low-life spouse of yours in in his or her proper, low, and degraded place.

But let me ask you this?  Do any of these friends and family look in the mirror in the morning with you? Do they raise your children, and do they have to explain to them why you and your soon-to-be ex are unhappy? Will they be the ones paying the mediator, the GAL, and the lawyers? Will they be the ones going into the courtroom to testify to the court about why there has been no settlement after repeated attempts?  Do your friends and family know when settlement attempts are required, which counties are mandatory mediation jurisdictions, and which forms must be filed in all cases as of 2013?  Are they experienced at developing parenting plans? Do they know the different standards for sole, joint and shared custody? Do they understand the various grounds for divorce, and what evidence will be required? Do they know when you need a competent witness to testify at a hearing (for that matter, do they know what makes a witness “competent”)?

We lawyers will explain the law and how it applies in YOUR unique case.  We any possible options and explain the ramifications of your decisions on your case, your finances and your lifestyle, to the best of our ability.  We try to prepare you for any changes that might effect your future, especially in child visitation and child support cases.  We know the answers to all the basic questions, and we have additional questions as well as answer .

So, if your BFF, your auntie, your step-mom and her friend that works in a doctor’s office who got divorced last year can all give you good advice, why  hire me?  Hire me because you want a professional yet caring attorney who will zealously defend your case and keep you informed regarding the law and its application to the facts of your case.  That is why hiring an attorney is better than listening to your BFF and the “Greek Chorus.”  And its why your attorney’s fees are money well spent.

 

 

Why the Baby Veronica case matters

On July 31, 2013, the Charleston County Family Court ordered the Matt and Melanie Capobianco will be Baby Veronica’s parents and with a court approved transition she will have both her adoptive parents and biological father in her life. http://www.counton2.com/story/22983997/baby-veronicas-adoption-is-final

if you haven’t followed this case, here is the Supreme Court of the United State’s web site with all of the details of the case, http://www.scotusblog.com/case-files/cases/adoptive-couple-v-baby-girl/

To boil it down for you, the child’s mother, who was not married to the baby’s  father, told the father she was pregnant.  He offered to pay for an abortion, then apparently abandoned the pregnant woman, who offered the baby to the adoptive couple.  They cared for the child from birth, and the adoption was set to be finalized when the father, through various means, interceded.  He asserted that his rights to the child as a Native American superseded those of the adoptive parents and that Federal law provided that the child must be removed from the home of the prospective adoptive parents and placed with the biological father whom she had never met.  The case went to the State Supreme Court which agreed with Brown, reluctantly.

However, the United States Supreme Court, which heard the case this summer, said that state law should have been followed.  The justices sent the case back to South Carolina. Once here, the state Supreme Court sent it back to local family court in Charleston, and last week Charleston Family Court finalized the adoption, allowing for a placement plan in which the adoptive parents and the biological father play a role.  The biological father and the Cherokee tribe have vowed to continue the fight for custody.

Why do you care about the fate of one four-year-old part Native American child? Because:

  • What if your son impregnates a young woman and walks away from his responsibility? Does he have the right to come back later and claim that child?
  • What if your daughter doesn’t tell the father of her child she is putting it up for adoption? What if she allows him to think she had an abortion instead? Does that action deny him of his rights to the child?
  • What steps must fathers take to find out about children they “might” have?
  • Should well-meaning people wishing to adopt a child but who later find out about “negative” circumstances be forced to give the child up?
  • At what age is it inappropriate to remove a child from a home with loving “parents”?
  • Is blood thicker than water – do the rights of birth parents trump those of loving and fit non-relative parent-substitutes who have raised a child from birth?
  • What are the Native American tribes rights to children with little Native blood? What percentage native blood is too tenuous a link to a tribe?
  • Should children have multiple parents – can a child have a legal link to a biological and an adoptive parent? Why or why not?

These and many other issues are raised in this case.  It may takes months or years before all of the repercussions of this case make their way into our lives in the form of new legislation.  No matter who you believe the ultimate winner and losers to be in the case of Baby Veronica, we cannot escape the fact that the case will resonate for years and perhaps decades to come.  Do you have a question about adoption? Contact a family law attorney like me. I would be delighted to assist you.

 

Who pays for my divorce?

Usually it starts like this.  A potential divorce client comes in for a consultation and states right off, “I don’t have any money.”

Uh-oh. I have to tell you, frankly, that is a bad start.  Because even if you and your spouse can agree on every single thing right down to splitting the silverware, divorce is going to be expensive.

First, there are the court costs and the service of process fees.  These costs are the same whether you have an attorney or are a self-represented litigant (often referred to as pro se.)  In addition, if you and your spouse cannot reach a fair and equitable settlement, you may be ordered to participate in mediation.  Many counties, including Aiken County, are mandatory mediation counties.  If the contested issues involve child custody and visitation, the judge will appoint a Guardian ad litem to the case.  You will pay for the mediator and the Guardian ad litem‘s time.

In addition to these fixed costs, you may need to hire a private investigator , a business evaluator, psychologists, child custody evaluators, and other experts.

If your spouse says the magic words, “I want a divorce” don’t be tempted to go it alone to save money.  Do yourself the favor of getting legal advice before you decide to be self-represented or to “share” attorneys with your spouse*.

 *In South Carolina, an attorney in a divorce case cannot ethically represent both parties.  “Sharing” an attorney is unethical; typically, an attorney will represent only one of the litigants.  The other may waive his right to an attorney by signing documents stating that he or she has been advised that he has the right to retain his own counsel and has freely and voluntarily given up that right.

Divorces are expensive. But an attorney who practices family law can advise you where to spend money wisely, how to save money by negotiating wisely, and help you understand all the pitfalls and possibilities of the family court.

 

 

 

Mental Cruelty – emotional distress and divorce

If South Carolina were like the movies, you’d hear this in courtrooms all over the state:

“My husband treats me terribly! He says horrible things about me and calls me names – says I am fat and ugly! It’s just unendurable! I can’t take it anymore!”

But in South Carolina, this fictional wife will have to move out (or get her fictional husband to do so) and wait for one year to pass in order to get her divorce. Because unless she has other grounds (adultery, physical abuse, habitual drunkenness), she can’t be divorced in South Carolina.

Clearly, mental cruelty is no laughing matter.  Emotional abuse, bullying, verbal abuse, these are but a few of the names we now use to describe the destructive forces of mental cruelty.  Why isn’t mental cruelty grounds for a divorce in this state? Well, it’s hard to say. Regardless of the reason, the statutory and case law is clear – South Carolina will not grant a divorce for mental cruelty.

When the cruelty issues arise in a case that included claims of habitual drunkenness or physical cruelty, the court sifts through the evidence, and generally, discounts the incidents that reflect mental cruelty (verbal statements, breaking personal property, etc.) as opposed to physical cruelty (punching, slapping, hitting with fists or other objects, shooting or shooting at.) If there is sufficient evidence remaining that meets the standard of physical cruelty (sufficient in nature of the injury, sufficient in number of incidents, sufficient in seriousness of the threat to the injured spouse), then the divorce will be granted on the ground of physical cruelty.  Although reasonable people know that mental anguish accompanies physical cruelty, mental cruelty does not bolster or increase the severity of the physical cruelty.  If the claims of physical cruelty are not enough, but there are instances of mental cruelty as well, a divorce cannot be granted in South Carolina, absent some other ground such as habitual drunkenness, abandonment or one year’s continuous separation.

If you or someone close to you is locked in an abusive marriage, it’s important to seek advice from an family law attorney who understands these issues. Please give me the opportunity to help.

Why do we need a Guardian ad litem?

Ok, let me first put a disclaimer here – I am a trained SC Attorney Guardian ad litem.  But I was an attorney before I was trained as a GAL, although I do know several attorneys who served as lay guardians prior to becoming members of the Bar.  In SC, courts routinely appoint both lay and attorney Guardians ad litem to Family Court cases, and, in my experience, we are lucky to have many fine GALs of both types.

Is a GAL necessary in your case? Generally, the courts in South Carolina may order the appointment of a GAL when there are disputes between the parties as to custody of and visitation with the minor children, and those issues cannot be settled amicably between the parties. In those cases, the court must make the final determination of custody and visitation based on the standard of “the best interests of the child.”  It is the guardian’s role to find and present facts to the court that assist the court in that determination.

If Mom and Dad can’t decide who Baby should live with, or Mom thinks Little Boy shouldn’t spend every summer with Dad but Dad wants two months straight with him, then the court will order that the parents pay for and cooperate with a GAL investigation to determine any facts the court needs in order to make a final decision regarding custody and visitation.  Guardian investigations are to be thorough and complete. The GAL will generally meet Mom and Dad separately and will meet the children.  He will likely visit the schools, the daycare centers, and the parents’ homes.  The GAL may interview any family members or friends that live nearby who may have facts related to the issues of custody and visitation.  He will also interview the children’s teachers, caregivers, and doctors in order to establish that the children are educationally, emotionally and physically well-adjusted and age-appropriate in their progress, and that they are healthy.  The GAL is empowered to review medical and school records.  He will discuss any issues he discovers with Mom and Dad and their respective attorneys.

On the other hand, the GAL doesn’t have unlimited power. He should not be involved in disputes regarding financial issues such as the amount of child support, alimony, property division or division of payment for medical care.  The guardian must not let income sway him in his review of the facts or in making recommendations to the court when the court asks.

Parties should take the opportunity to listen to the guardian’s concerns; they can rest assured that the court takes very seriously the findings of the GAL. If you are involved in, or may become involved in, a case in which custody and visitation will be an issue, discuss the role of the Guardian ad litem with your attorney.

 

Recreation drug use as a ground for divorce

Once in while, I’m asked whether it’s possible to get a divorce based on the occasional use of drugs.  South Carolina law seems very clear on this subject. S.C. Code Ann. Section 20-3-10 SECTION 20-3-10.

Grounds for divorce.
No divorce from the bonds of matrimony shall be granted except upon one or more of the following grounds, to wit: . . .
(4) Habitual drunkenness; provided, that this ground shall be construed to include habitual drunkenness caused by the use of any narcotic drug; . . .

 Oh, except for the little problem of “habitual drunkenness.” Does that mean drinking every day or only on the weekends? How much – a six-pack after work or just one drink every day?  And how does “drunkenness” related to getting high on drugs?

The courts have construed habitual drunkenness to be “the fixed habit of frequently getting drunk; but it does not necessarily imply continual drunkenness.” Rooney v. Rooney, 242 S.C. 503 (1963). In other words, if your spouse drinks to the point of drunkenness often but is not constantly drunk, you can get a divorce on this ground if you have witnesses or other supporting evidence. Testimony from your friends and neighbors, fellow employees or family members about seeing your spouse frequently drunk would support your contention, as would expensive bar tabs or liquor store bills, for example.  Alcoholism as reported in medical records is a ground for divorce. Yates v. Yates, 2003 UP 00635 (Ct. App. 2003).  In addition, the habit of drunkenness must exist at or near the time of filing for the divorce. Simonds v. Simonds, 229 S.C. 376 (1956), Lee v. Lee, 282 S.C. 76 (1984).  You can’t divorce a recovering alcoholic who hasn’t had a drink in years for habitual drunkenness, but you can divorce a drunk whose last binge was three weeks prior to filing based upon that habitual drunkenness.

But what about DRUGS?  Turns out, it does not matter what you get “drunk” on.  Just change the word “drunk” to read “intoxicated” or “high” and you get the same result for drug use.  If you can establish, by a preponderance of the evidence, that your spouse is habitually “high” on a drug, that is sufficient for the court to grant a divorce on this ground.  Examples of evidence are successive failed drug tests, testimony of witnesses, and medical records showing treatment for drug addiction.

I do want to add a caveat to all this – courts don’t like it when one drug user points the finger of blame at another!  If both parties have been using drugs (or getting drunk) together, it creates another set of issues for the court to determine.  More about that another time.

Recreational drug use, that is the very occasional use of drugs such as marijuana, will not meet the standard for habitual drug use (neither will occasional drinking.)  Of course, as you might guess, the dispute between the parties will be centered around the difference between occasional and habitual use.  Some courts have found that any use that has lead to the degradation of the marital relationship is habitual use, at least as far at that particular marriage is concerned.  If you are concerned about drug use or alcoholism and its effects on your marriage or children, consult an experienced attorney for advice.

What the heck is a “tort”?

A “tort” is a wrongful act leading to legal liability.  Isn’t that helpful? Don’t you feel scholarly?

Hmmm. Don’t feel bad, I didn’t feel very knowledgeable when I first heard the word “tort” in law school.  The definition didn’t help, either.  Maybe this will.  Generally, a tort is a civil wrong inflicted upon one person by another such that the actor (the inflictor) is liable for any harm he caused to the first person.  Did that help?

Yes, now I am laughing. 🙂  But, really, I promise I will explain.  Starting now.

  • A Civil wrong. A civil wrong isn’t the same as a crime.  Some things can be BOTH criminally wrong and civilly wrong (say, negligent homicide for example.) But, some torts are not crimes.  For example, if I am the cause of a car accident in the rain in which you were injured – yes, I should have slowed down and been more careful in the rain, but if I was under the speed limit, and my wipers were working and my lights were on, and I wasn’t drinking or texting, then I likely won’t get a ticket for the collision, but I still might have been negligent (a civil wrong).
  • Inflicted. Who did it? Why did they do it? Did they mean to do it? Did they do it negligently, recklessly, willfully, wantonly? All these things matter.  If you have the wrong actor, then that person cannot be held liable.  If I am not the one that pushed you onto the train tracks, I cannot be liable for your injuries. Maybe.  Perhaps I pushed the person next to you and they fell onto you and you fell onto the tracks. Then I will be liable.  But if I pushed a guy into the river, and he got out and was angry and drove to the train station, and in a fit of pique over being wet pushed you onto the train tracks, then I am not liable for your injuries, he is liable for your injuries.  I’m responsible if he got hurt falling into the river, but not liable to you.  This is called proximate causeA person is only liable for those injuries he proximately causes.  There can be more than one proximate cause. (More about that some other time!)
  • This concept is also intricately tied to another called “Duty.” I’ll talk about that one on another day, as well.  In the example above, if I pushed the guy into the river, I don’t have any duty to make sure he doesn’t go push you onto the train tracks.  If I can’t foresee that he might do that, and I don’t know who you and don’t instruct or plan for that to happen, I have no duty and therefore no liability in your injuries, even if you die.
  • Harm. The harm that the actor inflicts is called, collectively, the damages.  Damages range from small things like trespass to person (in other words, you touched me without my permission) to death, and from nominal costs (where a jury awards a few dollars to show that there was a loss) to medical bills and lost wage claims in the millions of dollars.  Obviously, it depends upon the type of harm, or injury that was inflicted by the actor.  Damages are proven by evidence such as medical bills and records, direct testimony, payroll records, demonstrative evidence, photographs, videos, and virtually any other form of admissible evidence.

So, what is a tort?  A tort is an civil wrong that causes injury, large or small, to a person, inflicted by another person who becomes liable to the first person because his action is the proximate cause of the harmful injury.