Case of the Text

One Tuesday night while cooking dinner, Sally notices her husband Bob’s phone that was charging on the counter beside her light up with a text notification. The contact states “Rachel” and is surrounded by heart emojis. Confused and curious, Sally enters Bob’s password and finds several explicit text conversations between Bob and Rachel. Sally screenshots the messages and sends them to her friends for advice. A few months later, Sally files for divorce. In a meeting with her attorney, Sally reveals the screenshots.

Is a Texas judge likely to allow these as evidence? The Dallas Court of Appeals ruled in Miller v. Talley Dunn Gallery LLC No. 05-15-00444, 2016 Tex. App. LEXIS 2280 (Tex.App.– Dallas March 3, 2016, no pet.) that though screenshots of such text messages are not intrinsically inadmissible, they may become inadmissible when obtained by accessing another person’s phone and constitute a violation under Texas’s Harmful Access by Computer Act (HACA).

HACA allows for a civil cause of action for violation of Texas Penal Code Chapter 33 when committed knowingly or intentionally. Miller citing Tex. Civ. Prac. & Rem. Code §143.001(a). Texas Penal Code section 33.02(a) creates an offense when a party accesses a computer (including a cell phone) without effective consent of the owner. Id.

The husband in Miller argued that he did not “access” the cell phone in violation of Texas Penal Code 33.02(a). Id. at 11. Further, the husband argued that even if he did access the computer, he had the effective consent of the owner through marriage because the cell phone was community property. Id. Rejecting this argument, the court reasoned that because the cell phone was password protected and was within the wife’s exclusive control, the husband violated HACA. Id. at 33

But how might a court rule if the phone is not password protected? Though the answer to that question may be unclear, there is little doubt that the conduct is ethically questionable. Perhaps the chance of it backfiring outweighs the potential benefit of offering such screenshots as evidence.

 

When does micro-cheating become 'actual' cheating? - BBC Three

 

Written by: Caroline Near, 3L

Is mediation always a good idea?

          Generally,  judges presiding over divorce proceedings in Texas will require the parties to mediate their disputes before a final trial. Mediation is a form of dispute resolution that occurs outside of the courtroom and is facilitated by an independent party. Typically, in family law cases, the parties are put in different rooms together with each’s attorney. The mediator bounces between the rooms assisting the parties in negotiation. Nearly all that is said within mediation is confidential. If the divorce spouses can reach an agreement as to every issue in mediation, there is no need for a final trial. Mediation offers notable benefits to both the court and the parties. Requiring parties to mediate a divorce clears up the court’s docket, which allows the court to focus on the most contentious issues. While hearings before the court are most often public affairs, mediation offers near complete privacy for the parties. Mediation may also speed up the parties’ divorce which could reduce both the amount each pays in attorneys and the emotional toll of an already exhausting process.

            Though mediation is a highly effective method of dispute resolution in many divorce cases, the consequences of meditation in some divorce cases are not so rosy.  For cases involving a spouse who suffered emotional abuse or intimidation within the marriage, the benefits of mediation may be outweighed by the risk that such spouse will agree to a settlement that is grossly inequitable.  The Texas Family Code provides protection for a divorcing party subject to domestic violence within the marriage by either lifting the mediation requirement or offering extraordinary precautions to ensure the party’s physical safety during mediation. As to the matter of protection for a spouse who has suffered emotional abuse or intimidation within the marriage, the Texas Family Code is, perhaps mistakenly, silent.

Mediator Skills — The Mediation Group

 

Written by Caroline Near, 3L

Standing Order in Dallas County Family Courts

A divorce or child custody dispute can be an incredibly stressful event, which can make anyone want to act out of anger or anxiety. Once the lawsuit is filed and you begin negotiations or temporary hearings with your spouse, you may feel the urge to trash them on Facebook, burn their belongings or prevent your child from seeing them. But before you give in to such urges, look at the last few pages attached to the back of your Petition. This document is a standing order, adopted by the Court, and applies in all divorce or suit affecting parent-child relationship suits. The standing order outlines both parties’ restrictions during the proceedings. These restrictions address the treatment of children the parties may have together, treatment of pets, conduct between the parties, treatment of property, personal and business records and insurance. Violations of this order aren’t necessarily as extreme as slashing the tires of your spouse’s car. Something as simple as opening your spouse’s mail or deleting a post from your social media that’s relevant to your case, violates the standing order. If you are unsure whether an action may violate the standing order, consult with an attorney.

It is important to thoroughly read and adhere to every requirement within this order. If you do not adhere to even one section within the standing order, and your spouse has a hearing to let the court know, you could be found in contempt of court. Being held in contempt, could lead to fines and even jail time. If there is a part of the standing order that you have issue with, you can request a hearing to contest it. However, this hearing must occur within 14 days of the filing of petition. If no party contests the standing order, it continues as a temporary injunction until further order of the court.

Written by Savannah Mani, 2L

But That Car Was Mine Before We Got Married?

When you are going through a divorce, the issue of who owns what property may arise.  Marital property is characterized based on when and how it was acquired. This is called inception of title; when a party has first right of claim to the property. In Texas, there is a presumption that property other than separate property acquired by either spouse during the marriage is owned by both spouses and is “community property.”  Separate property is property owned or claimed before the marriage, and property that was inherited by a spouse, gifted to a spouse, or acquired from a personal injury suit.

I’ll answer the title of this blog post’s question above with an example using inception of title, tracing and mutation. Husband and Wife were married for four years. During the marriage, they purchased a brand-new sportscar “together.” When Husband and Wife decided they could not reconcile and needed a divorce, Wife wanted to keep the sportscar.  Husband claimed the sportscar was community property and not Wife’s to keep, because it was purchased during the marriage. But Wife remembered that she sold her truck to purchase the sportscar. Wife’s attorney determined that Wife owned the truck before she was married to Husband and that it was her separate property. Then, Wife’s attorney traced the money from the sale of the truck and found that the money from the sale of the truck was directly used to purchase the sportscar. Therefore, because Wife’s separate property was used to purchase the sportscar, the sportscar is Wife’s separate property. Wife acquired the truck before marriage, sold it during the marriage to purchase the sportscar and used the funds from the sale of the truck to purchase the sportscar.

 

Written by Jordan Watson, 3L

Why You Should Definitely Take a Clinic (And Why You Might Want to Wait)

Should you take an SMU Law Clinic? Absolutely! Moreover, may I recommend the Family Law Clinic as a particularly great experience?  In many ways, taking a SMU Law Clinic is what you make of it. It can be a wonderful experience (it certainly was for me) – a person can learn and grow while getting real-world experience with actual clients who are experiencing real-life difficulties.  On the other hand, working in the clinic can be incredibly rigorous. It is often full of deadlines and some late nights as you struggle to balance the clinic workload, your work from other classes, and maintaining a personal life with your friends and loved ones. In many cases, both of these sides are true—clinic is wonderful and challenging.  Student attorneys may find themselves celebrating victories at times and pouring over files with their third cup of coffee at other times.  This is what real world lawyers do too!w

For some, they will come out of a clinic experience eager for the day that they can work with clients again. Others may leave the experience with the realization that a particular area of law is definitely not for them which is invaluable awareness. Nonetheless, the one thing that is certain about Clinic is that every student who takes a clinic will learn, will struggle, will get things wrong, and will learn how to represent a real client before graduating.  On the other hand, for some people, it may not be the right time to take a clinic. Aside from the ‘statutory’ requirements of the clinics (such as the completion of 50% of your law school credits), clinic also requires time and commitment as do the practice of law.  It requires a person to realize (1) they are a student, and that everything (yes, everything) must be run by the actual attorney first—this is part of your professional responsibility; (2) that these are real clients who have real needs and who deserve time and attention and diligent work, even when you are tired or otherwise busy; and (3) that it’s okay to ask for help, but make sure you’ve tried to do it yourself first (everyone needs help sometimes, but a law student shouldn’t need to be spoon-fed).  If you don’t think you can devote the time and attention to ethically represent your client under the close supervision of an outstanding clinical faculty, clinic may not be for you.  If you’re not willing to struggle, maybe even sometimes fail, clinic may not be for you. If you’re not willing to be a zealous advocate for your client, clinic may not be for you. But, if you’re read this far, if you’re still interested, you should definitely sign up for a clinic.

Written by Victoria Jones, 3L

Is “Best Interest” Anything the Judge Wants?

When a parent wants to file a suit that affects their rights and duties concerning their children, they file a Suit Affecting the Parent-Child Relationship (also called a SAPCR). A SAPCR must be filed as part of a divorce action, if the spouses have children, because the legal obligations and rights of the parents concerning the children must be established as part of the divorce. Otherwise, a SAPCR can be filed independently of a divorce, to establish the rights and duties of the parents, as is often done when the parents of the child were never married.

In either case, the judge is ultimately charged with deciding how those rights and duties ought to be allocated. For example, a judge must decide what person has the exclusive right to determine the primary residence of the child and must also decide what possession and access the other party (or parties) should have to the child. Other things, such as child support, are also typically determined in a SAPCR. How does the judge decide these things? The Texas Family Code provides some guidelines and presumptions on how this should work. Things like the Standard Possession Schedule give guidance to judges on what arrangements are typically appropriate in most circumstance. Even within these guidelines, however, judges are given broad discretion to determine what arrangement is best. Specifically, many sections of the family code concerning children include a portion that says that a judge must make the determination that the requested relief is “in the best interests of the child”.

So, is “best interest” anything that the judge wants it to be? Well, no, not really. The Texas Family Code provides a number of guidelines to help a judge determine what is best for the children. Nonetheless, the Code doesn’t actually tell the judge precisely how these factors should be weighed against others nor does it contemplate exactly all the factors that might be taken into account. In the end, the final determination is left to the individual judges, with each judge determining on a case-by-case basis how each of these factors (or other factors) should be weighed. Although ‘best interest’ may not mean ‘anything goes’ for the judge, it does mean that the judge has a lot of room to consider a range of factors and weigh those factors however he or she deems is appropriate for the circumstances of the child.

Written by Victoria Jones, 3L

Family Law and Immigration: A Child’s Path to Lawful Status

There has been an increase over the years of unaccompanied immigrant children entering the United States. So, what happens to these kids? Who cares for them? How does the government intervene to aid such vulnerable individuals?

The Office of Refugee Resettlement (ORR) takes over the care of children once they have been detained by U.S. immigration. Some children come alone into the U.S. in search of opportunities they don’t have back home such as economic and safety from abuse, abandonment, and neglect.

Congress established the Special Immigration Juvenile Status (SIJS) as a path to lawful permanent residency by the Immigration Act of 1990. Congress sought to protect immigrant children who suffered abuse, abandonment, or neglect by one or both parents and are in the U.S. without status. It saw that these children were in need of special protection and that without this path to lawful status, they would be even more vulnerable to further exploitation and instability.

There is a 2-step system for obtaining SIJS relief.

The first step involves a state juvenile or family court make a finding that meets the federal definition of a Special Immigrant Juvenile (SIJ). The state court must find that (1) the child is dependent on the court or the court has placed the child in the custody of an individual entity; (2) reunification with one or both parents is not viable due to abandonment, abuse, neglect, or similar basis; and (3) it is not in the best interests of the juvenile to be returned to his or her country of origin. This first step was granted to the states because of their expertise in fact finding in family and juvenile issues. The states are better equipped and act within their usual function of providing and ensuring the safety, welfare, and custody of abused, abandoned, and neglected children.

The second step involves immigration officials who use the findings from the state court to determine if the child is eligible for immigration relief. Eligibility is based on the child being present in the U.S., unmarried, under 21 years of age at the time of filing with the United States Citizenship and Immigration Services (USCIS) and have a qualifying state order. The applicant must submit a certified copy of the state court order along with a Special Immigrant (Form I-360) to USCIS. If the form is approved, the child attains SIJ status and is eligible to apply for adjustment of status to lawful permanent resident by filing an Application to Adjust Status (Form I-485).

But does this mean that a child must be completely alone in order to qualify?

A child under state custody would have a finding by a juvenile court that must declare the child dependent on the court or place the child in custody of an individual agency. However, there is available relief for children even if there is the possibility of reunification with one parent. An updated USCIS Policy Manual (October 2016) notes that the state court must determine the court intends that the child will not reunify with at least one parent until the child reaches the age of majority. SIJS findings can be included in custody and paternity orders, guardianships, adoptions, divorce decrees, etc. This means that children involved in adoption or guardianship proceedings may be able to obtain relief as well.

SIJS is a form of relief that brings humanitarian protection to children in vulnerable situations. This protection is found under Immigration and Nationality Act (INA) §101(a)(27)(J) and 8 U.S.C. §1101(a)(27)(J).

Written by: Jaqueline Obregon

Same-Sex Marriage in Texas: A Constellation of Benefits?

In June of 2015, the Supreme Court issued an opinion in Obergefell v. Hodges which dramatically challenged and overturned the status quo regarding marriage throughout the United States, and particularly in Texas, by declaring that, “The Constitution . . . does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.” Among the reasons for the decision, the Court cited that “same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens.” Among the “constellation of benefits” cited by the Court are property rights, hospital access, adoption rights, worker’s compensation benefits, and health insurance, among others.

Following the Obergefell opinion, many states – Texas included – found that their pre-existing structures for providing spousal benefits had to be adapted to account for the possibility of same-sex marriage. One such case arose out of Arkansas. In Arkansas, as in most states, when a woman in an opposite-sex marriage gives birth, her husband’s name is placed on the birth certificate as the child’s father, unless the woman, her husband, and the child’s actual biological father all swear that the husband is definitely not the child’s father.

After the legalization of same-sex marriage, however, married lesbian women who gave birth found that their spouses were not listed on their child’s birth certificate, despite their request that their wives be listed as legal parents. In Pavan v. Smith, the U.S. Supreme Court declared the practice unconstitutional, noting that the decision not to list a mother’s female spouse on her child’s birth certificate “denied married same-sex couples access to the ‘constellation of benefits that the state has linked to marriage.’”

One interpretation of Pavan v. Smith is that states may not deny benefits to same-sex couples that they extend to opposite-sex couples. In Texas, however, the Texas Supreme Court has taken a different interpretation – namely, that each benefit must be individually reviewed and decided on a case-by-case basis. In late 2013, the City of Houston began making spousal benefits available to city employees’ same-sex spouses where the couples had married outside of Texas. That same year, a citizen sued to challenge the extension of benefits to same-sex spouses; Obergefell was decided while the suit was still being litigated. Ultimately, four days after the decision Pavan was issued, the Texas Supreme Court ruled that Obergefell did not hold that states “must provide the same publicly funded benefits to all married persons.” The Texas Supreme Court did not, however, address Pavan in their decision.

At current, it remains unclear whether, in Texas, same-sex couples are entitled to the same rights and benefits as opposite-sex couples. Pavan v. Smith implies that they are, but the Texas Supreme Court has held otherwise, and there are several statutes still on the books in Texas that limit same-sex couples’ rights to the benefits of marriage that opposite-sex couples have access to, such as the right to have both spouses named on an original or amended birth certificate, or the right to receive spousal benefits when one spouse works for the Texas government at any level.

 

Written by: Nita Hight

Pets: Property or Part of the Family?

Divorces are usually an emotional roller-coaster for both parties. Not only are the parties parting ways, but they might also be parting with property. But what happens when that “property” is part of the family?

Family units keep evolving and therefore so should the law. More and more couples opt for pets instead of children or pets first, then maybe children. These pets then become part of the family or are seen as an additional child. But if this pet is more than just “property” what happens to it during a dissolution of marriage? There is not a Suit Affecting Parent-Child Relationship (“SAPCR”) for pets like there is for children. So then how do you “split” a pet when both parties have an interest in keeping it?

There are currently, 3 states in the U.S. that have adopted custody laws that allow judges to consider the best interest of the animal. This means that judges in Alaska, Illinois, and California won’t simply consider the pet a piece of property any longer but may determine who can keep the family pet. Animals feel pain and love and as such should have their best interest taken into consideration. When making a decision, judges may take into consideration factors that could affect the welfare and well-being of the pet such as who cares for, trains, walks/plays with it, and whether one neglects or even mistreats the animal. There are also protection orders, commonly used in domestic violence cases, that can be put in place while the divorce is pending.

Current California law AB 2274 was signed on September 27, 2018 and went into effect on January 1, 2019, specifically, it provides for joint custody of pets. Before, animals were not treated differently than inanimate objects, but AB 2274 now differentiates companion animals from other types of property. Although these animals are still classified as personal property, California law is adapting to the way people view pets as family. Would this then mean that in the future enforceable pet support and medical support and decisions could also be in play?

It is likely that these states will provide guidance and encouragement for other states to incorporate similar laws involving the best interest of pets. Unfortunately, the current laws only apply to divorce proceedings and not to roommates.

Once an animal is welcomed into a home and becomes part of the family, it is difficult for someone to accept that they might have to part ways from it. Families build meaningful relationships with pets that should be taken into consideration during the dissolution of a marriage. Family units keep evolving and therefore so should the law.

Written by: Jaqueline Obregon

Exercising To Cope With The Post-Divorce Blues

Divorces can often times be messy. A divorce can, for many people, be one of the most stressful times in a person’s life. Regardless of how emotionally invested you are in a dissolving relationship, it is important to take care of both your physical and mental health.

When grappling with stress, people may turn to food, drugs, alcohol, or even complete isolation. Although many vices may help cope with stress, all of them are not healthy. There is, however, one beneficial way that is proven to help alleviate stress and improve your overall well-being. Physical exercise!

In addition to helping quell some of life’s stresses, exercise helps in the following ways:

  • Improved respiration, cardiac output, and vascular system;
  • Increased muscular strength, endurance, and bone density;
  • Improved flexibility;
  • Improved digestion and bowel function;
  • Improved sensory skills;
  • Decreased stress, insomnia, and depression;
  • Increased social interaction;

During the Fall 2019 semester, the legal clinics participated in Zumba classes hosted on campus at SMU. Participants were asked about their stress levels both before and after participating in Zumba. All student participants reported that they had high stress levels (mostly due to the rigors of law school), but were much more at ease and relaxed after each class. Each participant remarked on the benefits of exercise with Zumba, and stated that they would like to take up Zumba more regularly as a means to tackle stress in their lives.

Our physical and emotional health should always be a priority, but these warrant special attention during difficult life events such as a divorce. Remember that you are always in control, and that your circumstances need not hold you captive. Take care of yourself, good people.

Written By: Trenton Patterson, 3L chief counsel in the SMU VanSickle Family Law Clinic.