The world of technology changes at break neck speed. Just in the past year, Apple released its third generationiPad and seven months later it is introducing the fourth generation iPad, new iPad Mini and the iPhone 5. Even Apple fans hardly have time to familiarize themselves with a new toy before another is introduced. The newtechnology is available even before contracts run on the previous models.
Most people today are not as concerned about keeping up with the Jones’s as they are with keeping up with the Steve Jobs’s. The problem in the legal field is that while lawyers struggle to keep up with latest and greatest technological advances, the laws addressing the use, misuseand abuse of such technology are also ever-evolving. However, the laws are not evolving at nearly the pace oftechnology growth. The result is that obtaining evidence through the use of technology can become dangerous both to clients and attorneys.
No one can be completely sure how old laws will apply to new technology particularly technology that few could fathom or contemplate when the laws were enacted. Lawyers and judges struggle to apply general principals of law to situations never imagined. While there are some hard and fast rules, much of this area of law remains murky and uncertain. Clients may believe their “smoking gun” e-mail will win their case, but, if a court later decides that the client obtained the e-mail illegally, the court will exclude that evidence entirely. Even worse, the client and the attorney offering the illegally obtained evidence might face civil and criminal liability for even attempting to admit such material.
In a much-publicized Ohio case, an ex-wife, Catherine Zang is currently suing her ex-husband, Joseph Zang, and his attorney, Mary Jill Donovan, for wiretapping and invasion of privacy. Catherine Zang claims her ex-husband installed monitoring devices in their home and spied on her with a hidden video camera and microphone. She alleges that he installed these secret cameras to gain leverage during their divorce proceedings. Under the federal wiretapping laws, a person may not intercept wire, oral, or electronic communications, and, under many state’s laws,unless one of the parties in the conversation is aware of the recording, the recording is illegal. This means that in so called “one party” states like South Carolina, a husband is allowed to tape his wife’s conversation only if he is also a party to the conversation. Joseph Zang under Ohio law was probably not allowed to record his wife’s conversations that were not with him, as he allegedly did. He and his lawyer are facing civil penalties up to $10,000 per taping, plus punitive damages and attorney fees. They could also be charged criminally and be fined up $250,000 and serve up to five years in jail.
The reality is that using technology to gather evidencefor potential use in during litigation is likely dangerous for both clients and their attorneys. Most technologically savvy attorneys implement electronic evidence policies that require their clients to disclose how they obtained electronic evidence before ever discussing the substance of the evidence. Such policies are designed to protect both the client and the attorney from exposure to criminal and civil liabilities.
Family law attorneys increasingly field questions such as, “I bought that computer she’s using, why don’t I have the right to read her e-mails?” or “I paid for that iPhone, why can’t I use the tracking feature to find out where she’s going after work?” “It’s our car, is it ok to put a GPS tracker on it?”
Today’s family law attorney must stay abreast of how to answer these and many other questions because spying on one’s spouse has become an unfortunate, yet common occurrence in our society especially given the readily accessible spy technology.
If you suspect your spouse, business partner or employee of wrongdoing of any sort, before you conduct your own electronic surveillance, consult with an experienced, technologically savvy attorney. Too often clients and employers make the mistake of thinking that because they are married to someone or employ someone who uses their equipment that person no longer has privacy rights. Ask for advice before you snoop to best protect yourself and to ensure that any evidence you gather can be used later in court if necessary. (Article inspired by Technology Policy written by Mark Chinn, Esquire, Jackson, MS)
Judge Paul Garfinkel of the 9th Judicial Circuit Family Court, Charleston County, SC, allowed me to share the following comments he made to the litigants in a recent custody trial. His message is an important and insightful one, which I imagine many parents involved in custody disputes will find helpful.
I want to make a few comments to you about how important it is to your family to resolve this case. I know that both of you sit here today; each of you are convinced of the merit of your own case and the righteousness of your own position. However, asking your attorney to convert your convictions and beliefs into evidence that will result in a verdict in your favor is asking for what I believe the most difficult task that a trial attorney can be required to do.
A custody case is much different than any accident case or a criminal trial. In those cases, an attorney is only asked to prove what happened at a specific date and place. All of the events have been fixed and are unchanging. A custody case is much different. You are asking your attorneys not to paint a picture in time but to present a movie. The movie must show over a broad range of time how each of you parent. Then, I must decide which of you is the better parent.
Can you imagine if you had to prove that da Vinci’s Last Supper was a better painting than Michelangelo’s Creation and say that you had to prove this to someone who had never seen either painting, and you weren’t allowed to show the paintings to them?
I suppose you could hire the curator of the Metropolitan Museum of Art who would come to court and testify about composition, color, depth, character, and proportion. Or I suppose you could bring in some ordinary people to say which one they think is better. Maybe you could take a poll.
This is what you are asking your attorneys to do in this case. They have to prove to me which [of you] is the better parent, but they have no way of showing me exactly how you parent. They can’t take me to the study sessions so I can see you how a good tutor Dad is. They can’t bring me into your child’s bedroom at 5 a.m. to see how Mom comforts the child who is awakened with a fever. I want you and I want your attorneys to bring up those incidents which show you to be caring and loving parents, and I am sure they will try.
However, it is more likely that they will be forced to show the other parent at his or her worse. Neither of these efforts will work very well. In trying to prove the positives you will discover that with the passage of time the inability of witnesses to describe the situation with the same force with which it occurred, just the difficulty of putting into words other peoples thoughts, feelings and actions, all of these combine to make grey what you felt was vivid or blunt what you thought was poignant.
On the other hand, the negatives will seem to make you look like the worse parent that ever lived. Did you ever send one of your children to school without [their] lunch? Did you ever forget to give one of your children [their] medicine? Did you ever say about your child “I could have strangled her?”
We probably have all done those things, and it will be presented as if you are the most neglectful or abusive parent. At the end of the trial any goodwill each of you had for the other, if there is any, will have been totally destroyed.
It is both of you who must be parents of these children until either you or they die. Neither I nor any of these lawyers … will be there for you for the remainder of this long journey. We could try to do our best to get you pointed in the right direction and maybe even help you along, but it is only in the first few steps. In the end, it is both of you who must raise these children.
If your children could reach into their hearts and tell you exactly what they think and feel about what is going on here, if they could get beyond the hurt we know they must feel, we all know what they would say. First they would say, “I wish Mom and Dad were back together.” Knowing this will not happen, they would say, “I wish they would just stop fighting.”
No doubt they love you so much they are probably blaming themselves for your original breakup. It is time you get past the anger and put aside the hurt. You may even have to forgive.
The pain that has been caused here arises from the conflict between each of you and has nothing to do with the children. Your children want this conflict to end. You have the chance to leave here today with an agreement that is in the best interest of your children. But it is an agreement that you must reach together. You must be willing to put aside your differences and be willing to accommodate each other’s needs. But most importantly, you must be ready now to put the needs of your children first.
I know that your children want you to settle this case. You can do the right thing and you can start now. Put aside what has happened in the past.
This is the judgment day for your children. It’s not about you. And think about the additional damage you are going to cause to these children.
I can tell you right now it has happened, and it happens every time.
Put aside your own egos and swallow them. Leave it in this courtroom. We’ve had a lot of egos left in this courtroom. You don’t see them, but I do because I see parents who are willing to put their children’s welfare above their own ego. And they leave it right here and they know and understand what is really best for the children.
The South Carolina Chapter of the American Academy of Matrimonial Lawyers has issued a position statement regarding the pending joint custody bill, H. 4614, currently before the State Senate. This legislation would create significant changes in the way custody cases are decided in South Carolina, and in some respects would limit the Family Court’s ability to craft custody arrangements that fit the needs of South Carolina families.
Robert Rosen, Esq., President of the SC AAML Chapter states, “The Joint Custody Bill Needs Work.” Read the Chapter’s position statement written by Mr. Rosen and approved by the Chapter here in PDF format.
In an unusual reversal of itself, the South Carolina Supreme Court in a 3-2 opinion authored by Justice Kaye Hearn reversed itself on the issue of the Family Court’s authority to order a non-custodial parent to help pay for an emancipated child’s college expenses.
In McLeod v. Starnes, issued March 7, 2012, the South Carolina Supreme Court overruled Webb v. Sowell, 387 S.C. 328, 692 S.E.2d 543 (2010)(which had held that it was a violation of the Equal Protection Clause to make non-custodial parents contribute to an emancipated child’s college expenses overruling Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979). In McLeod, the Supreme Court finds that the State has a legitimate interest in protecting the children of divorced parents from the ill-will often engendered by acrimonious family break-ups and held that our judges can now again order non-custodial parents to help pay for college expenses.
In so ruling, the Court placed a heavy emphasis on the State’s interest in protecting the children of divorced families from “the acrimony of marital litigation impact[ing] a parent’s normal sense of obligation towards his or her children.” The Court stated:
As can hardly be contested, the State also has a strong interest in ensuring that our youth are educated such that they can become more productive members of our society. It is entirely possible “that most parents who remain married to each other support their children through college years. On the other hand, even well-intentioned parents, when deprived of the custody of their children, sometimes react by refusing to support them as they would if the family unit had been preserved.” In re Marriage of Vrban, 293 N.W.2d 198, 202 (Iowa 1980).
Based on the possibility that some parents, when deprived of the custody of their children, might retaliate against the custodial parent by refusing to assist the child with college expenses, the Court has reinstated the law of Risinger v. Risinger, 273 S.C. 36, 253 S.E.2d 652 (1979).
Under Risinger and its progeny, a family court judge may require a “parent to contribute that amount of money necessary to enable a child over 18 to attend high school and four years of college, where . . . there is evidence that: (1) the characteristics of the child indicate that he or she will benefit from college; (2) the child demonstrates the ability to do well, or at least make satisfactory grades; (3) the child cannot otherwise go to school; and (4) the parent has the financial ability to help pay for such an education.”
For those parents who hoped to ask for support to pay for their children’s college expenses as part of their divorce action or subsequent to their divorce but chose not to pursue this relief because of the April 2010 ruling in Webb v. Sowell, they should contact their former attorney and revisit this issue. Based upon McLeod v. Starnes it may be possible to seek this relief from the non-custodial parent for children who plan to attend college or are currently in college and not supported by the other parent.
Eric Solotoff, a prominent New Jersey divorce attorney, has written a humorous but incredibly insightful article on his blog on “How to Not Settle Your Case.” This tongue-in-cheek post provides valuable wisdom in a funny way, and hopefully clients will recognize the behavior described in that post is self-destructive.
9. Ignore your lawyer’s advice. What do they know anyway? If your lawyer is telling you that you should jump at the deal on the table because it looks like a huge win, disregard it. If they tell you that you have real exposure on certain issues or may be forced to pay your spouse’s legal fees, roll the dice. If your attorney tells you that they are willing to try your case, but that you should consider settlement because the cost of the settlement will be less than the cost of the trial plus the absolute minimum you have to pay, don’t believe it. And what does your lawyer know about the law or the judge anyway?
Eric S. Solotoff is a partner in the New Jersey firm of Fox Rothschild, LLP. He is Co-Chair of the Family Law Practice Group, certified as a Matrimonial Law attorney by the New Jersey Supreme Court and a Fellow in the American Academy of Matrimonial Lawyers. Eric’s blog is read by thousands on a weekly basis. Enjoy his commentary and consider subscribing to his blog as he frequently posts valuable information for family law attorneys and clients.