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IMPLICATIONS OF GPS PHONE TRACKERS ON DIVORCE CASES
The evolution of technology continues to have implications for lawyers and clients in divorce and custody cases.
Smartphones store GPS coordinates and information about a user’s whereabouts which can allow someone to obtain very detailed information about where a user has been. Additionally that information is transmitted back to the companies to use for research.
As with any technology, there are good and bad uses for the technology.
Pros:
1. Law enforcement uses the information to obtain criminal evidence and obtain convictions;
2. Phone users get to use apps for maps, restaurant reviews, etc.;
3. The information help companies learn more about you so they can market goods or services that you may be interested in.
Cons:
1. Further erosion of your privacy and the chance for hackers to obtain information about you that can be misused. This can be used against you in many ways. Stalkers can hack into your phone and get information to discover where you live or what your daily patterns are so they can contact you. This has serious ramifications for victims of family violence. In divorce/custody cases, the information is a double edged sword depending on which side of the case you are on because lots of information can be obtained to determine what is really going on with someone. Did they violate a court order about drinking by going to Clubs? Did they really take the kids to school? Do they have a job?
There is an entire generation growing up in an era where there is basically no privacy and no concerns about losing privacy (“Facebook Generation”). The Facebook Generation is generally not concerned about privacy; however, we need to be aware of situations in which we may want to increase our level of privacy.
It is important to note that there are state and federal laws that govern hacking into cell phones, and one should always seek legal counsel before engaging in such activity.
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A ruling is expected Tuesday in a contentious case testing the role of religion in divorce and child custody disputes, and the extent to which courts can involve themselves in religious observances, according to a recent article in the Chicago Tribune.
The divorce of Joseph and Rebecca Reyes began receiving national attention last year after Joseph, the father, violated a court order by having the couple’s daughter baptized in a Roman Catholic church. Rebecca Reyes is Jewish, has full custody of their 3 year old, and says that prior to their break-up Joseph had converted to Judaism and agreed that the child would be raised in the Jewish faith. According to the Los Angeles Times, a judge hearing their case refused last month to issue a temporary injunction that would have allowed Joseph Reyes to take the girl to church on Easter Sunday.
By all accounts the Reyes case has become particularly bitter. Joseph Reyes claims that Rebecca has only made religion an issue out of spite. Rebecca Reyes’ attorneys, speaking to the Times, accused Joseph Reyes of using religion “to deflect attention from the father’s lack of financial support and parenting skills.”
All of which places the courts in a difficult situation. Joseph Reyes contends that America’s traditional separation of church and state makes any court ruling on his daughter’s religion unconstitutional. Scholars studying the case are not as certain. Eugene Volokh, a first amendment expert at the University of California, told the Tribune that courts, as a rule, can only intervene in a child’s religious upbringing if “the religious conflict” between the two parents “puts that child at risk.” How risk is determined – especially when it concerns the emotional, as opposed to physical, well-being of the child is a complex matter and is subject to wide interpretation.
Texas courts don’t typically make specific orders related to the religious upbringing of children of divorce. §153.074 of the Texas Family Code states that “Unless limited by court order, a parent appointed as a conservator of a child has the following right during the period that the child is in the possession of the parent:
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The right to direct the moral and religious training of the child.”
The Texarkana Court of Appeals reviewed a case in which the trial court modified a provision in the prior court order by removing the requirement that the possessory conservator take the children to the managing conservator’s church when he had possession of children. The managing conservator appealed and said the trial court violated her right to determine the religious training for her children. The Court of Appeals disagreed and denied the appeal.
It is permissible for parents to make agreements regarding the religious upbringing of their children and to incorporate the agreements into the Parenting Plan which will then be approved by the Court. Our firm reviews these options with clients to make sure they are properly addressed. Jody Lynn Johnson, P.C.; www.jljfamilylaw.com; 469-429-0093.
Chicago Tribune: Religion used as a weapon in divorce
Los Angeles Times: Child custody and religion
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Beginning in the 2009 tax year, there were some significant changes to the Child Dependent Exemption Tax Deduction.
Changes made by the Internal Revenue Service are as follows:
1. The custodial parent, for 2009 & forward, is the one with whom the child resides the greater number of nights during the year, regardless of the divorce decree terms.
2. You must obtain IRS Form 8332 (Release of Claim to Exemption for Child of Divorce or Divorced Parents) to claim the exemption if you are the non-custodial parent. The divorce agreement or court order will not be used to substitute for IRS Form 8332.
3. The custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 & forward, even if the release was made prior to 2009.
The parent claiming a dependency exemption on the child/children is the only parent eligible for the following tax benefits:
• Dependent Exemption Deduction
• Child Tax Credit
• Child and Dependent Care Credit
• Education Credit or Education Expense Deductions
• Earned Income Credit
• Head of Household Filing Status
With all the new changes, all non-custodial parents who plan to take a dependency exemption should obtain IRS Form 8332 for 2009 & forward tax years. A divorce agreement or court order cannot be substituted!
In any future settlement agreements that include a provision for a non- custodial parent to take a dependency deduction for one or more children in one or more future tax years, have the custodial parent complete IRS Form 8332 when executing the settlement agreement. Sometimes it is very difficult to get ex-spouses to sign off on papers at a later date!