We always tell our clients to be careful with their social media posts. But we seldom think about what their child might post.
In a non family law case where the parent had won a settlement, the child's post on Facebook days later caused the parent's settlement to be voided.
You see, Patrick Snay, the former headmaster of a school in Florida, had sued the school (Gulliver) for discrimination, and had agreed to an $80,000 settlement. And one of the terms of the settlement was CONFIDENTIALITY or non disclosure.
Such non disclosure provisions are common in litigation; they are also common in Divorce and Custody cases. But that is for another day.
Snay's daughter posted the following to her 1200+ Facebook friends “Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”
Through some of her 1200 friends, the post made its way back to Gulliver's officials and lawyers, who asserted that the post violated the confidentiality provisions of the agreement, and should void the agreement.
And the agreement was set aside by a court of appeals.
So be careful what you tell your child about your personal business--especially if the child is active in social media!
There are potential lessons for a family law case here. The Dallas Divorce Courts' Standing Orders and Temporary Injunctions issued in a divorce or other family law case have provisions that prevent either parent from involving the children in the divorce. The best parents in a divorce rehearse with a counselor how to tell the kids about the divorce, and tell them that the divorce is not about them, that both parents love them, and both parents are committed to make the transition to two households as smooth as possible. And give support to the kids during the process, but not much opinion.
In other cases, one or both parents flame the other parent repeatedly in front of the children because of their anger or other issues that the parent has. many times such bad acts are brought before the Court, and dealt with in ways that are not liked by the flamers. I have seen sanctions all the way to a change of custody. An example of a flame could be: "We can't go to the movie tomorrow because your Daddy spent all the child support money on his [girlfriend][drugs][gambling] [boyfriend] [you pick--you get the point].
The Miami Herald story is here.
The Dallas Morning News is reporting that United States District Judge Orlando Garcia has ruled that Texas' ban on same-sex marriage is unconstitutional. Both the Texas Family Code and Texas State Constitution ban same-sex marriage. The article cites the judge's decision:
“Today’s court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the U.S. Constitution and Supreme Court precedent,” he said in his order. “Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our U.S. Constitution.” Lawyers arguing for the State said that the legislature and the citizens of Texas had chosen to "preserve the traditional definition of marriage." It appears the judge was not swayed by that argument. Judge Garcia "acknowledged his ruling would be far from the final say on the matter" the DMN reports. It is likely that the Supreme Court will decide the issue by ruling on this case (or one of the 22 similar cases in other states) in the future.
Personally, I'm not surprised by this ruling. Recently, federal courts in Virginia, Oklahoma, Utah and other states have struck down various state-level same-sex marriage bans. These cases are a direct result of the U.S. Supreme Court's U.S. v. Windsor decision. In Windsor, the Court struck down section 3 of the Defense of Marriage Act (DOMA) that restricted the federal definition of "marriage" and "spouse" to heterosexual unions was descriminatory and violated the Fifth Amendment.
The judge has stayed his ruling from taking effect until the ruling can be reviewed on appeal. So how does this ruling effect Texans?
Right now, nothing has changed. Same-sex couples are still prohibited from obtaining a marriage license. It is likely that the State will appeal the ruling to the 5th Circuit Court of Appeals. Read the whole article here, it also has a copy of the Judge's ruling attached.
You may think that the calls and texts you send and receive from your cell phone are yours and private.
While it is clear that the content of such communications is private–absent a court order--data about to whom, from whom, the duration of such calls, and the facts of the text message's transmission, are NOT private.
AT&T just disclosed that it had honored over 300,000 requests for cell phone information from law enforcement agencies in 2013. This does NOT include the number of requests from civil subpoenas, in cases like divorces or child custody cases.
The data that is clearly NOT private (in response to a subpoena) is the occurance (date, time, duration, and to/from what number) of a call, text, or email. Geotags--location information--may be in a different category. Click here to take read an older post, Think Before You Text, about the risks that text messages and e-mails can pose to clients.
So everyone leaves a digital trail of their cell phone usage that CAN show up in a divorce or custody case.
But there is one potential positive of getting the cell phone records: a case of call spoofing previously discussed in a previous News item here.
A story in PCMagazine about AT&T's responses to law enforcement requests is here
Attorney-client confidentiality is a bedrock principle of the American legal system. Candor and free expression between attorney and client is essential in the course of representation.
But lawyers are not immune from cyber security concerns, and despite prudent precautions, some attorneys can fall victims to cybercrime.
The ABA Journal reports a North Carolina attorney inadvertently downloaded a virus that shut him out of his computer system.
Like other businesses, the attorney was targeted via e-mail. He opened a fairly innocuous attachment, and that's when the Crypto Locker virus took over. The article reports that "Thousands of documents stored on his computer were made inaccessible," the attorney reports, "it was actually an email that looked like it was coming from our phone system because our system sends voice mail messages as an attachment.”
The makers of the virus essentially held his computer hostage, and offered him access to his computer if he paid a ransom.
My recommendation for lawyers: regularly back up your electronic files with external hard drives, and keep them in a secure, fireproof place--and consider having a backup copy located outside of your office in a secure and fireproof place. Also consider secure cloud services.
My recommendation for everyone: be careful what you download--schemes like this Crypto Locker extortion ring are pretty sophisticated.
The ABA Journal story is here.
My friend Mark Bentley, who works as a lawyer for the UT System in Austin, commented that their office is not immune from cyberattacks like this one. He adds that these malware can be masked and look like trusted websites and known e-mail senders.
A married couple promises to stick together for better or worse, for richer or poorer. According to a recent study, after hard economic times and the economy starts to rebound, so does the divorce rate.
In a recent story in the LA Times, divorces plunged when the recession struck and slowly started to rise as the recovery began, quoting a study to be published in Population Research and Policy Review.
"From 2009 to 2011, about 150,000 fewer divorces occurred than would otherwise have been expected, University of Maryland sociologist Philip N. Cohen estimated. Across the country, the divorce rate among married women dropped from 2.09% to 1.95% from 2008 to 2009, then crept back up to 1.98% in both 2010 and 2011. The National Marriage Project earlier dubbed the drop in divorce "a silver lining" to the Great Recession, arguing that tough times were pulling many husbands and wives closer together. But some couples may have simply put off divorce until they could afford to part, researchers say. The economic uptick may have finally given them the freedom to split."
Food for thought.
The Texas Standard Possession Order in the Family Code specifies how Spring Break works. In general, one parent gets spring break in one year, and the other parents gets the next year.
But the devil is in the details. Sometimes there are different holidays for different kids as they are in different schools. Some times there is a school or other trip that doesn't fit the mold suggested by the legislature.
Clear, direct communication between the parents is usually the best way to work out these issues. But sometimes a parent needs assistance in making sure everything goes as expected with no hiccups, or emergency retraining orders being filed that blows up a long planned event or trip.
Many times a consultation with an experienced lawyer WELL IN ADVANCE of Spring Break can prevent a cluster right at Spring Break. (That's why this is published in January, not March...)
Call us if we can help.
At the national annual meeting of the American Academy of Matrimonial Lawyers held in Chicago this week, Ken Raggio co produced and moderated the Second Annual Technology Symposium, presented to several hundred other Fellows of the Academy. Academy membership is by invitation only, and is regarded nationally as the most prestigious family law organization.
As part of the program, Ken demonstrated the use of TranscriptPad, a high end iPad app that helps organize depositions and other transcripts in a family law case. The demo was very similar to the use of the tool in either Court or other proceeding: by having the iPad display on a big screen TV.
Ken Raggio and Melissa Brown made a presentation to the Family Law Section of the New Mexico Bar Association on Pleasures and Problems of Social Media and other Issues of ESI (Electronically Stored Information) as it relates to Family Law. More than one party in a divorce or custody case has been "done in" by their OWN postings to social media sites. Their two hour presentation opened the eys of the Judges and lawyers present at the live presentation in Albuquerque as well as those watching on the simulcast elsewhere in the state.