The Dangers Of Social Media, Email, And Texts In Custody Cases.

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Quite often in custody cases, a client gets nailed to the wall for something they said in a text or social media post.  Sometimes they don’t.  What makes the difference?

Anger.

More and more, people are sharing difficulties in their lives on Facebook, Instagram, or another social media forum.  They frequently lash out against the other parent in texts and emails.  And more often than not, those statements and posts are used against them in their custody case.

It is perfectly natural for people who are frustrated and hurting to want to say something about it.  I’m often given reams of screenshots and posts that show the other parent is manipulative or defamatory in what they say about my client. This is particularly bad when children have access to that parent’s social media posts.  Unfortunately, it is also fairly common that these texts and posts are unusable at trial because of how my client reacted to them.  They often try to defend themselves to the accusing ex or to their friends on social media.  But to a judge, who assumes both parents are equally entitled to raise their children, it makes them both look bad.

Custody of children is based upon a number of factors.  (For a detailed discussion on custody determinations, see my article “Fathers and Mothers have Equal Custody Rights in Nevada.”)  Three of those factors are regularly affected by what people post online or send to the other parent:

·         Which parent is more likely to allow the child to have frequent associations and a continuing relationship with the other parent;

·         The level of conflict between the parents; and

·         The ability of the parents to cooperate to meet the needs of the parent.

In most cases, parents who are able and want to be involved in their children’s lives are going to be given that opportunity.  But when a parent seems to be overly controlling, or when they go out of their way to disparage the other parent publicly, the court is going to wonder if they really are capable of fostering the other parent’s relationship with the children. And if they are viewed as the one unnecessarily increasing the conflict, especially when it results in more court actions, that parent can end up paying the other’s attorney’s fees.

Generally speaking, children do best when they have both parents positively engaged in their lives. So, when one parent proves themselves to be untrustworthy, they have a harder time getting joint physical custody.  So consider how you use electronic communications. 

The general rules regarding texts, emails, and social media posts are these:

1.       Assume that whatever you write is going to be seen by the judge.  This is true even if today you think you and the other parent are getting along.  If something goes sideways a year from now, you can bet they are going to search for everything you posted and introduce it into evidence.

2.       Never send a message or a post in anger.  It always comes back to bite you since the court (and others) will not understand the context – and they might disagree with you.  Your anger makes you seem ignorant of your children’s needs, and it makes you look difficult.

3.       Never respond in kind.  Often, we see parents receive a nasty message, and they reply in an attempt to settle the score, right the wrong, or justify what they did.  In high-conflict cases, one parent might send a four-page email complaining about something, and the other will send four back in rebuttal, and four more to prove the point.  These responses always backfire.  Arrogance is never rewarded in court.

4.       If you must respond (and you usually don’t have to), experts suggest this rule: send a maximum of four sentences, with no more than 20 words per sentence.  This will force you to stick to only the important issues and leave the unnecessary sentences out.  And don’t send it immediately after writing it.  Instead, wait an hour or two, or even overnight if circumstances permit. That delay will give you better perspective as you settle down.

Trust me when I say I love it when the opposing parent loves to post about the other on Facebook.  It almost always gives me great evidence to show they are the problem parent.  That stands to reason in that if all the posts were positive about my client, my client is less likely to need me in the first place – the parents are getting along.  But what grieves me as a trial attorney is when my client responds in kind and ruins the potential exhibit.  I can’t just cherry pick the statements in court.  I am supposed to show the court the entire exchange.  So, if my client responds in just as bad a way as the original post, it’s as if it never happened.  I can’t use it.

So, consider carefully what you post if you are prone to post anything about your lives online.  Recognize there are no rights to privacy on what you post.  Neither are there “first amendment protections” from the consequences of what you write. That you have the right to say it is probably true. But you can’t control the repercussions once it’s out.  Instead, if you must write something, be as short and positive as you can. It is bound to make things easier for you moving forward.

If you or the other parent are struggling and prone to use social media, call the attorneys at Nevada Family Law Group at 702-910-4300.We can get the details and give you advice tailored to your needs.

Can A 16 Year Old Marry?

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I was recently approached by a young person asking whether they can legally marry. She was 16 and deeply in love with their 20 year old boyfriend of 4 months.  The short answer is “yes, a 16-year-old can marry.  NRS 122.020(3) states that a person as young as 16 can marry, but they must obtain the consent of one parent or their legal guardian. The more important question is: should they?

We know from years of social science and medical research that the majority of 16-year-olds do not have the life experience or judgment to make such important life decisions. Roughly 70% of 16-year-olds divorce within 10 years, and that number increases when their partner is more than four years older than they are. They typically lack the experience gained from repeated dating necessary to select a partner that is well suited for them. Those that marry young often have difficult home lives (and thus poor relationship modeling) that they are consciously or unconsciously trying to escape, and they find themselves in another difficult relationship that they then have difficulty leaving or even coping with because they don't have the emotional fortitude or confidence to do so. Those individuals often marry because they have a child, or they have one early in that relationship. And they then have a harder time with future relationships due the the presence of a child or the loss of whatever trust they might have had in finding an appropriate partner.

The human brain does not fully develop until our mid-20s, and the last part to develop is the prefrontal cortex - the "judgment center" of the brain. So research and experience suggests that the most successful marriages occur starting in our mid-20s, and up. Frankly, the older partner should be willing to wait until the 16-year-old is emotionally capable of having a healthy adult relationship. So my advice as someone who handles these cases is to wait and seek the counsel of a trusted adviser who's older and has had a successful long-term marriage.They are going to be far more objective and realistic in the likelihood of success of this budding relationship.

Same Name Confusion and Mistaken Identity

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I was recently asked an intriguing question:  “My name is Nancy Edwards “Doe.” (The last names are replaced for privacy reasons.)  My ex-husband dated and recently married a woman named Nancy “Edwards” and now goes by Nancy E. “Doe.”  My ex and I had a contentious custody battle where he regularly said he would take the children and disappear. I have primary physical custody.  He told me that he has obtained the children’s birth certificates and social security cards.  There is nothing on the birth certificates that distinguish between me and his new wife.  What can I do to prevent them from taking the children?”

I guess the guy really liked women named Nancy Edwards.

This is not a common situation, but there are certainly things she can do to protect herself. 

Obviously, it would be fraud if they were to try to pretend the new wife is the mother and she were to sign as the mother.  If caught, this could lead to both criminal and civil (financial and custody) problems for them.

Fortunately for most people where only the first and last names are similar, birth certificates have full middle names, making confusion less likely. But in this instance, the new wife has the same middle name as well, so it would make the mistaken identity more likely.  While there's not a lot someone can do to prevent their attempts, there are some things a person can do proactively to reduce the likelihood of abduction or serious misconduct.

For example, if the biological mother is concerned that the ex-husband and new wife might obtain a passport for the children without the biological mother’s knowledge or consent and flee the country, mom can flag her children's names with the Federal Government so they will be contacted before a passport is issued. (For more, visit https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/prevention/passport-issuance-alert-program.html.)  Mom can also ask the credit reporting agencies to put a note on her file - or even freeze her credit - to make sure the new wife cannot sign for a new credit card or incur other debt in mom’s name.  And were dad and wife to use mom’s personal information or bank/credit accounts for their use, that would be fraud she could report to her bank or credit card company, who take these sorts of things fairly seriously.

Beyond that, most reporting agencies and sophisticated creditors can distinguish between people with the same name using other information they have. Social security numbers are unique to the person, so creditors can quickly tell the difference between the people.  And all three agencies provide credit monitoring programs that alert the subscriber of any credit activity on their account, which allows the subscriber to respond quickly.  It’s a hassle, but there are many out there who face this all the time.  There are a lot of Steven Smiths out there, not all of them good.

So while mom will likely face some risk for at least the rest of her children's minority status, there are things she can do today to protect herself. And as her children get older and more world-wise, the risk of nefarious action goes down as the children will likely tell their about them.

Can I Move Out Of State If The Father Isn’t On The Birth Certificate?

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I get this question a lot.  Sometimes in the form of “I don’t know who the father is” or even “he doesn’t know I got pregnant and I want to move.”  The answer is the same: Nevada law says you have to get permission before you move. The courts will think it hard to believe that the mother doesn’t know who the father is since he had to be there when she got pregnant. Even if it could be many men, she still has to try to figure out who the father is, particularly if welfare is involved. It doesn't matter that there is no father listed on the birth certificate either as the father’s rights are the result of being the biological parent, not because his name appears on a piece of paper. But what if the mother really has no clue?  If there is any real doubt, a DNA test will be done to confirm or exclude that person as the father. And if they are the father, then they get to move a custody case forward. And if the mother has already moved out of Nevada, she should get an attorney. If it is shown that she moved knowing who the father was, she faces potential parental kidnapping charges.

 

For more on the law, visit https://www.nevadafamilylaw.com/articles/2017/2/21/ab-263-the-parental-rights-protection-act-of-2015