Divorce and Wiretapping and other Interceptions of a Spouse's Electronic Communications
Divorce is a difficult time for both parties involved. States have different types of divorce and different requirements associated therewith. Some states have no-fault divorces and others have fault-based divorces. If the parties reside in a fault-based divorce state, information such as whether the opposing party was unfaithful, abused his wife, or engaged in other improper or illegal conduct may be important and admissible.
Wiretapping of Phones
Spouses may wiretap their own home phone, but wiretapping of the other spouse's office phone or cellular phone in order to obtain information about that spouse's affair or other wrongdoing is more questionable. There are state and federal wiretap laws to protect individuals from privacy invasions such as wiretapping. In the majority of states, the use of an unauthorized taped conversation is inadmissible because the illegal taping violates state or federal law. The spouse could be civilly or criminally liable as a result of attempting to introduce such information.
Seizure of Other Electronic Communications
An area that more spouses are tending to gravitate towards now in the electronic communication age is obtaining copies of electronic messages from the other spouse's computer or palm pilot. Depending upon the state involved in the divorce action, such information may be admissible. Under the applicable federal statute, electronically stored communications such as emails are protected the same as the original transmission of the communication. Many states have more stringent laws with respect to retrieval and usage of electronic communications such as emails. However, if the messages were stored on a joint computer, the discovery thereof by the other spouse may not result in any type of violation.
It is still an open question as to whether seizure of a spouse's pager violates federal law. If not, the information retrieved therefrom may be used in a divorce proceeding, at least in a fault-based state. However, many states prohibit the usage of information retrieved from pagers.
Spouses should be cautious before retrieving phone, pager, or other electronic communications because they may be violating state or federal laws
Child Neglect
Every child has the right to expect that their parent or primary responsible caregiver will reasonably and prudently provide clothing, food, medical care, protection, shelter, and supervision. When a parent or primary responsible caregiver fails to provide the essential things to a child, a child may be neglected. Child neglect is more common and sometimes more devastating than child abuse. Often times child neglect and abuse are referred to in the same type of context.
Neglect
Neglect may be physical, emotional, medical ,or educational. First, physical neglect includes the failure to provide food, shelter, and clothing to the child. Second, emotional neglect includes the lack of physical and emotional contact between the parent or caregiver and the child. Third, medical neglect refers to the parent or caregiver's failure to provide reasonable and proper medical care for the child. Last, educational neglect refers to the inattention to a child's emotional needs and requirement to attend school. The above examples do not always lead to the conclusion that a child is neglected, however the are indicators that neglect may be an issue.
Parental or Primary Responsible Caregiver's Duties
A parent or primary responsible caregiver fulfills their duty by doing certain things that promote growth, safety, and health. Because they cannot always promote growth, health, and safety to an optimal level, they must not be held to a standard of perfect care. However, when care falls below a reasonable or prudent level, the child may be neglected.
Consequences of Child Neglect
Child neglect may relate to health consequences, mental or cognitive consequences, or behavioral issues. Child neglect can place children at higher risk for a variety of diseases and conditions, especially if the child is not properly or adequately fed or cared for.
Investigation of Reported Neglect
If neglect has been reported to a social service agency or local agency, or is suspected by a professional, an investigation will likely occur. Every state has different requirements that govern the parameters of the investigation. If the neglect is of a severe nature, the child may be removed from the home and placed in foster care or with a relative. Some parents or caregivers may be required to show that their circumstances have changed or that they are able and willing to provide proper care for their child. The social service agency in each state generally handles these types of matters.
Criminal Neglect
If neglect by the parent or caregiver is so severe or if the neglect resulted in the death of a child, the parent or caregiver may be charged with criminal neglect. States vary on the name of the offense and the elements required in charging one for criminal negligence.
Changing a Minor's Last Name
The issue of changing a minor's name is a rapidly emerging issue due to divorce, same-sex marriages, and parents using different last names. In the United States, there has been a tradition for centuries and a general assumption that a child born in wedlock will carry their father's last name or surname. Whether the child has the mother's last name, the father's last name or a hyphenated last name, the child's last name is significant. The child's last name serves as a link to her family identity and background.
Changing the Last Name
A child's last name may be changed as part of divorce proceedings. The majority of jurisdictions will permit the minor to change her last name if the record demonstrates that such a change is in the best interest of the child. Some factors that are considered by a trial court with respect to a minor changing her last name include:
- The child's age.
- The child's experience in the divorce proceedings.
- The child's relationship with the parent that the child is seeking to obtain the last name of.
- Whether a name change would result in a lack of identity for the minor.
- A child's last name may also be changed as a result of an adoption proceeding or through paternity proceedings.
Constitutional Issues Associated with Last Names
Generally, most states permit parents to give their child any last name that they wish. Typically, most parents chose the father's last name, but the couple may also chose the mother's last name or a hyphenated version thereof.
Some states limit the parents' ability to give their child certain last names. If this issue occurs, the couple may challenge the state's limitation by arguing that the state statute violates their constitutional family protections. The right of a parent to choose her child's last name is not a fundamental liberty interest. If the state statute limiting the parent's right to choose a last name is challenged, the state is only required to show a rational basis for its statute limiting the choice of name. If the state cannot show a rational basis, then the parents' choice of name will be enforced.
Self-emancipation of Minors
A minor may obtain a court order declaring him or her to be self-emancipated. A self-emancipated minor has most of the legal rights and duties of an adult. The parents of a self-emancipated minor have no further duty to support the minor.
Who can seek self-emancipation?
A minor who has left his or her parents' home and has become self-sufficient may seek self-emancipation.
How does a minor become self-emancipated?
A minor is never automatically self-emancipated, even if the minor has left the parents' home and has become self-sufficient. A minor must obtain a court order declaring him or her to be self-emancipated. Therefore, the minor must file an application for self-emancipation in the appropriate court. The court will hold a hearing, admit evidence, and grant or deny the application.
What factors will a court consider in deciding whether to declare a minor self-emancipated?
The law of self-emancipation varies by state. However, courts generally consider the following factors when deciding whether to grant an application for self-emancipation:
- Self-sufficiency. In order to be self-emancipated, the minor must prove self-sufficiency, i.e., the ability to support himself or herself. The court may require the minor to present documentary evidence, such as paychecks and bills.
- Parental Consent. A court may be more likely to declare self-emancipation if the minor's parents consent to the emancipation.
- Maturity and Responsibility. A court will determine whether the minor possesses the maturity and responsibility to be emancipated. The court will make the determination based on the testimony of the minor and the parents and all other relevant evidence.
- Age. State laws impose minimum age requirements on self-emancipated minors. For example, a minor who is under 17 will not be eligible for self-emancipation in some states.
Gifts in Contemplation of Marriage
What if a marriage between two parties never takes place? Is the donor or the giver of the gift permitted to recover the premarital gift given to the recipient, his or her future spouse? Whether or not the donor is entitled to recover the premarital gift depends upon the circumstances. If the gift was conditioned on the marriage, either explicitly or implicitly, then the donor may recover the gift depending upon the facts in the case.
States differ on their interpretation of whether the donor is entitled to recover the gift if the marriage does not occur. The following are some examples of how states interpret whether the donor is entitled to recover the gift if a marriage does not occur:
If the donor gave the gift after the engagement, then some courts consider the gift conditional and find that the donor is entitled to recover the gift.
If the donor gave the gift prior to the engagement, a condition may not exist and the donor may not be entitled to recover the gift. This scenario may arise with respect to holiday or birthday gifts or events unrelated to the underlying engagement.
If the court finds that a condition exists, the donor may recover the gift if the recipient breaks the engagement or if the parties' engagement ends by way of mutual consent.
If the donor refuses to honor the condition of marriage, the recipient may keep the gift.
If the donor makes a gift to a minor conditioned upon marriage, the donor may recover the gift if the minor or both parties consent to the end of the engagement.
If the recipient of the gift is a minor and the minor disposes of the gift regardless of whether a condition existed or not, the donor is not entitled to recover the gift after the disposal thereof because any contract of marriage to a minor is void.
If a third party gives a gift in contemplation of marriage, the donor is usually able to recover the gift.
In states that have enacted laws prohibiting actions for breach of contract to marry, the donor may not be entitled to file an action for the return of gifts in contemplation of marriage. Other states permit the filing of actions for a breach of contract to marry. In those states, the donor may be entitled to also file another action for the return of any gifts to the recipient given in contemplation of marriage.