Thursday, October 27, 2011

"What's good for the goose is good for the gander."

For those of you who don't know, a "gander" is a male goose.  "Male goose" is really a misnomer because a "goose" is a female and a "gander" is a male.  There is no such thing as a male goose.  So what does this have to do with divorce?

Tennessee's child custody statute changed in June, 2011, specifically, the new statute reads as follows:

"In taking into account the child's best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out below, the location of the residences of the parents, the child's need for stability and all other relevant factors." Tennessee Code Annotated § 36-6-106(a).

The "maximum participation" language is what is new about the statute.  This new language has been added to the statute due, in part, to the efforts of father's rights advocates.  But let's be clear, the bottom line remains the same: the child's best interest is the ultimate concern of every court in every custody case.  It's too early to tell how the new language will affect the decisions of our Tennessee courts, if at all, but it is important language to consider when arguing your case before the court.

In the quote provided above, you'll notice that it also mentions "all relevant factors."  Below is a list of the main factors that the court considers, but the court may consider any other factors it considers important when making its decision:

(1) The love, affection and emotional ties existing between the parents or caregivers and the child;

(2) The disposition of the parents or caregivers to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent or caregiver has been the primary caregiver;

(3) The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment; provided, that, where there is a finding, under subdivision (a)(8), of child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, by one (1) parent, and that a nonperpetrating parent or caregiver has relocated in order to flee the perpetrating parent, that the relocation shall not weigh against an award of custody;

(4) The stability of the family unit of the parents or caregivers;

(5) The mental and physical health of the parents or caregivers;

(6) The home, school and community record of the child;

(7)(A) The reasonable preference of the child, if twelve (12) years of age or older;

(B) The court may hear the preference of a younger child on request. The preferences of older children should normally be given greater weight than those of younger children;

(8) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; provided, that, where there are allegations that one (1) parent has committed child abuse, as defined in § 39-15-401 or § 39-15-402, or child sexual abuse, as defined in § 37-1-602, against a family member, the court shall consider all evidence relevant to the physical and emotional safety of the child, and determine, by a clear preponderance of the evidence, whether such abuse has occurred. The court shall include in its decision a written finding of all evidence, and all findings of facts connected to the evidence. In addition, the court shall, where appropriate, refer any issues of abuse to the juvenile court for further proceedings;

(9) The character and behavior of any other person who resides in or frequents the home of a parent or caregiver and the person's interactions with the child; and

(10) Each parent’s or caregiver's past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child's parents, consistent with the best interest of the child.

Tennessee Code Annotated § 36-6-106(a).

Thursday, October 6, 2011

Technology and Divorce

Steve Jobs, Apple's founder, passed away yesterday, so it is only appropriate that I write a blog about technology.

I was a programmer for 3.5 years before going to law school.  I've read countless books and learned to program in six different languages, as well as create and maintain databases that manage a wide variety of information, from medical supplies to tobacco products to construction materials to concert events to mortgage applications.  I took training classes from certified trainers at Sun Microsystems in Chicago, Illinois and I created security applications for Vanderbilt Medical.  My applications helped make businesses successful by propelling them from a local mom-and-pop shop to a world-wide supplier.

And then I became a divorce attorney and I realized how valuable my experience with technology can be for my clients.  Here's how.  Attorneys call it E-Discovery, or Electronic Discovery.

1. Social networking sites like Facebook, Twitter, and Google+ can provide a plethora of information about people.  I'm amazed at the things you can find.  Here are a few examples:
  • Pictures of your spouse doing things they shouldn't be doing, like cheating or slandering you or doing drugs or showing off their newest purchase of marital property that they are trying to hide from the court. 
  • Email addresses, phone numbers, mailing addresses, etc.
  • Lovers and friends of your spouse, also known as witnesses to attorneys.
  • First-hand comments about nearly every moment of their lives: conversations between your spouse and his/her "secret" lover, proud declarations about your spouse's party life, admissions of guilt, etc.
  • Pictures of your kids in inappropriate environments at unreasonable times of the night with people you don't even know.
  • People's employers despite the fact that they claim to be unemployed.
  • People's real-time locations.
  • The truth.
All of these things together can provide you with insight into people, i.e. your spouse and children, that you might not otherwise have.  And if the person doesn't take the steps necessary to hide this information, then it's all public information.  As long as you simply look on the internet at what has been made public, you're doing nothing wrong by looking.  If you're not looking, perhaps you should.

2. Cell phones make it easier to communicate with people.  You can communicate with people on a cell phone by calling, texting, emailing, chatting, video chatting, etc.  Most cell phone companies do not save your text messages and if the phone company does save text messages, they only save them for a very short period of time, usually not long enough to get a subpoena issued and served before the messages get deleted from their system.  So how can cell phones help you in your divorce?  Let me count the ways:
  • If you can't print your text messages (and most people don't know how), you can take a picture of the message.  Chances are you will lose your text messages before you get to use them in court.  Err on the side of caution and take a picture of all text messages that you think you might want to use in your case.  A picture is worth 160 characters...or something like that.
    • Keep in mind that you might need text messages to show threats of physical harm if you need to get an Order of Protection or file criminal charges against someone.
    • You might also need the text messages to show the court what kind of person the sender is, i.e. vulgar, aggressive, a liar, two-faced, etc.
  • Cell phone companies are great at one thing.  They keep records of their users calls.  Why?  Because they charge their customers for those calls.  You can usually get a person's phone records dating back  6-12 months.  These phone records show you the numbers called or called from and how long the conversation lasted and the date and time the calls were made.  You can create a useful history about someone's daily life with cell phone records.  Think about it.  People call their secret lovers, their accountants, their private investigator, etc.  You can figure out who all of these people are and issue subpoenas to them for your spouses records.
  • Most people have started to use their cell phones to take all of their pictures.  Do I even need to discuss how helpful it can be to get access to someone's cell phone pictures?  Some companies automatically backup pictures to a server when a picture is taken.  Knowing a little bit about the person's cell phone and their service can tell you a lot about how a person saves their pictures.
    • It is important to point out that you should never access someone's accounts or cell phones without their permission or a valid court order giving you permission.  There are legal ways to get the information you seek.  Obtaining the information illegally is not only a felony but it will also prevent you from being able to use the information in court.
Be careful how you use your cell phone.  It is becoming much more common for people to get court ordered access to your records.  As technology becomes more advanced and more accessible to the common public, the court also adapts and understands its value in litigation.

3. Hard drives are the pot of gold at the end of the divorce rainbow.  That's a bad analogy because divorce is no rainbow but you get the point.  The bad part is that most people don't have the money to be able to hire an expert to analyze a person's hard drive, extract data, and then have that person testify in court about what they found.  If you can afford this, do it.  Even if people have tried to delete their data or hide things, an expert might still be able to find it.  Most people aren't smart enough to beat an expert at hiding things on a computer hard drive.

Also, when you file for divorce in Tennessee, an automatic injunction is entered that prohibits both parties from deleting the information stored on data devices like a hard drive.  Of course, if someone expects you to look for it, they'll go to great lengths to hide it or destroy it.  There are ways to deal with it if a party intentionally destroys computer data in a lawsuit.  It's a complicated battle that most likely will require an expert to help you but people try to hide lots of money sometimes and they especially try to hide their dirty little secrets.

4. I saved "email" for last because it is probably the most obvious way to have records about what people have said.  Save all of your emails from your spouse or anyone else that might be relevant to your case.  Print the emails and save them.  You never know when they might be helpful.  You can also identify other important information in an email, such as I.P. addresses, internet service providers, where the email was sent from, what device it was sent from, what computer system the email was sent on, etc.  This information might be important for a bunch of reasons.  If you can print the emails with the "header information", do it.  If you don't know what "header information" is, ask someone how to do it.

I hope this is helpful to you.


The information you obtain from this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. I invite you to contact me and welcome your calls, letters and electronic mail. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me until such time as an attorney-client relationship has been established.
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