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.

 

 

 

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.

 

 

 

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.