Wednesday, November 25, 2015

Getting Text Messages Into Evidence

We text every day- many times without thinking about the fact that these hasty words are perfectly preserved and readily available to be used against you in your divorce or family law case.  

Galveston family lawyers and other practitioners are eating these bits of evidence up like candy in domestic cases.  But there are still some issues about getting evidence of a text before the court that the attorney must consider.  Like all pieces of evidence, attorneys must show that the evidence is an actual document (or an "authentic" true copy) that wasn't fabricated.  Attorneys must also show that the text should be allowed despite the general rule that hearsay (an out of court statement offered as the truth) is not allowed because it is so unreliable.

In the case of Butler v. State, the Texas Court of Criminal Appeals set out the following predicate:

Q. What is [Appellant’s] phone number?
A. 361-215-3899.
Q. Does that number appear on all the pages of the exhibit?
A. Yes.
Q. How do you know that that is [Appellant’s] telephone number?
A. Because that’s where he called me from and that’s what’s on the
same exhibit in front of me.
Q. You’ve read the text messages in the exhibit?
A. Yes.
Q. Who sen[t] you those text messages?
A. He did.
Q. How do you know that it was him?
A. Because he was the one texting me back and forth and he had
even called in between the conversations talking mess.

The Court of Criminal Appeals said that it was not enough for a lawyer to prove that a text was sent to a certain person's phone.  The lawyer must also prove that it was received by the certain person (NOT just the person's phone- because phones can be stolen).  So an attorney must also show that based on the response to the text or other context clues that the phone receiving the information was under the control of the other party.  

Thursday, November 12, 2015

Americans Believe That Clerks Must Issue License

Linda Massey opposes gay marriage.  But she was incensed last bummer to see that Kim Davis, a Kentucky county clerk, was refusing to issue marriage licenses to gay couples.

"If the government says you have to give out these marriage licenses, and you get paid to do it, you do it/" says the 64-year-old retiree from Lewiston, Michigan. "That woman", she said of Davis, "should be out of a job."

Americans like Massey are at the heart of a shift in public opinion, an AP-GfK poll has found.  For the first time, most Americans expect government officials to issue marriage licenses to same-sex couples, even over religious objections.

It's partly a matter of expecting public servants to do their jobs.  But more broadly, the issue touches on a familiar dispute over which constitutional value trumps which:  religious freedom, or equality under the law?

The question in recent months has entangled leaders with political sway, among them Pope Francis and the 2016 presidential contenders.  But its not a new conflict for a nation that has long wrestled with the separation of church and state.

Where Davis's answer was the First Amendment's protection of religious freedom- and she severed jail time to back it up- a majority of respondents don't buy the argument when it comes to public officials issuing marriage licenses.  That's a shift since an AP=Gfk survey in July, when Americans were about evenly split.  Then, 49 percent said officials with religious objections should be exempt from issuing marriage licenses to same sex couples and 47 percent said they should be required to issue them.

Source:  U.S. News & World Report

Tuesday, November 10, 2015

Child Preference for Managing Conservatorship

There seems to be a lot of misconceptions about what the Texas Family Code says about allowing a child to express their preference about who will be the managing conservator.

In Texas, a child over the age of 12 may file with the court in writing the name of the person whom they have preference to determine the primary residence and make other significant decisions.

Although a court may give this preference serious consideration, the court is not bound by it.

Additionally, in nonjury cases, the court is empowered to interview a child of any age in the judges chambers and without parents or their attorneys being present. (TFC 153.009).

If a child is over 12 and one of the parties request it, a record of the interview shall be made and included in the record of the case.  If the child is under 12, the court can determine if the interview will happen.

Sunday, November 01, 2015

A Better Marriage is Better for Your Health

From TIME: 
Studies have pretty consistently shown that being married and staying married is better for your health. The married population lives longer and gets less sick. But a new study out of Utah suggests that it’s only really happily married people who get the full benefit.
People often think of marriages as happy or unhappy, but they are rarely so easy to classify. Couples in what the researchers called “ambivalent marriages,” unions that are not bad enough to leave but still have distinctly negative attributes (and no, this is not all marriages—just about 75% of them, says the study), do not get many of the advantages of those whose marriages are very fulfilling, the researchers found.
The study, conducted by Brigham Young University psychology professor Wendy Birmingham, and published in the Annals of Behavioral Medicine, asked 94 couples about their spouse’s behavior and what the study romantically called their “interpersonal-functioning.” A quarter of the couples were genuinely happy and had no complaints. But three quarters of the marriages fell into the ambivalent category: mostly their spouses were great, but there was some areas in which they were unsupportive or overly negative.
“There was a high level of positivity in the marriage, but there was also negativity,” says Birmingham, who cites the example of a wife who’s a great partner but not happy with her man’s career, or a husband who’s a wonderful dad and lover but very critical. “These are people who are committed to the marriage. There’s just a lot of negativity, which is negating the positive physiological benefits.”
Read more here.