Brad Pitt now has some supervised visitation with his children. Remember, for every father, there is most often a paternal grandmother out there who is interested in the children. Jane Pitt, Brad’s mom, is furious with Angelina over the allegations accusing her son of child abuse. But at least the FBI is not going to prosecute concerning whatever happened between Brad and his 15-year-old on the private airplane. If Jane Pitt were in North Carolina, she could apply to the court for her own grandparent’s visitation schedule.
I am going through a divorce. I think my ex is having an affair that broke up our marriage. I subpoenaed his phone to get the text messages, and my ex reported to the court that he dropped his phone in a hot tub. Since the water killed the phone, he threw the phone away. Now my evidence is gone. The phone is gone. This is not fair. He destroyed the evidence. What can I do?
Carolyn Answers …
Text messages are particularly difficult evidence to re-create, especially if the original device, such as the phone itself in your case, goes missing. In civil lawsuits, such as a divorce, the phone company will not produce the content of the text messages. You probably can get the data that says “x” phone texted “y” phone at a particular date and time, but the actual words of the text will not be available from the phone company. Thus, the texts are only on the actual devices that either originated or received the texts. Particularly with iPhones and iPads that are linked, the texts may be on more than one device, so you might look into all of the possibilities of linked devices where the text messages may be.
I frequently send out a letter of spoliation at the beginning of a case requiring the opposing party to protect and preserve evidence on digital devices. This evidence is referred to as electronically stored information, or ESI for short. But what happens if the opposing party reports the data was accidentally lost? The new federal decision of Shaffer v. Gaither provides insight.
In an entertaining soap opera of facts, Ms. Whitney Nicole Shaffer was terminated as an assistant district attorney from the 25th Prosecutorial District, Burke, Catawba and Caldwell County, by District Attorney Jay Gaither (elected criminal prosecutor). According to Gaither, Ms. Shaffer had an affair with a married criminal defense attorney that regularly was opposing counsel in her assigned criminal cases. Now there’s a conflict of interest for you. Gaither fired Shaffer, and then Shaffer sued Gaither. Gaither sought text messages from Shaffer’s phone to prove his reasons for firing her. Oops! Her phone was destroyed when she dropped it in the bathroom. Poof, no evidence. So far, the federal judge has done no more than the FBI did when Hilliary lost all of her phones and emails.
The duty to preserve evidence arises when one first realizes the ESI might be needed in litigation, but really – our society is disregarding this duty regularly. I’d like for Judge Jeanine to get ahold of Ms. Shaffer.
My spouse and I are among the lucky folks to be able to do an international adoption of a baby. The doors have closed on much of this, but we have been successful. I have heard of the term “re-adoption.” What does it mean? Do I need to do anything here in North Carolina?
Carolyn Answers …
The term “re-adoption” takes on a couple of different denotations and connotations, so I’m glad you bring up this topic. Congratulations on your successful international adoption. Unfortunately, many countries – like Russia – have closed the doors to most adoptions out of distrust of the United States on human trafficking issues.
In your situation, I think you are using the term “re-adoption” to mean re-adopting in North Carolina after the foreign adoption is final. This type of re-adoption is an excellent idea, as it provides that the legal paperwork is handy here in North Carolina where the child is. This type of re-adoption is more of a formality of paperwork. Please do this for your child.
The other use of re-adoption is “re-homing,” which is a dangerous part of potential child trafficking. In re-homing, a child is adopted by one set of adoptive parents, and then the adoptive parents give the child up for adoption to a second set of adoptive parents. In North Carolina, there is no prohibition of re-homing, although many states are looking into a ban on re-homing.
Of particular concern to me is the secrecy that precludes tracking of adoptions and re-homing, making this particularly attractive to criminal human traffickers. I mainly worry about the children whose parents have had parental rights terminated in a secret process, and then the children taken from them are subsequently adopted in a secret process. In North Carolina, the adoptive parents can put the child they adopted immediately up for a second adoption in another secret process with no oversight and no follow-up. North Carolina needs to outlaw re-homing immediately.
Send questions on family law and divorce to firstname.lastname@example.org, or P.O. Box 9023, Greensboro 27427 or at Ask Carolyn’s comment section at rhinotimes.com.
Note that answers are intended to provide general legal information and are not specific legal advice for your situation. The column also uses hypothetical questions. A subtle fact in your unique case may determine the legal advice you need. Also, please note that you are not creating an attorney-client relationship with Carolyn J. Woodruff by writing or having your question answered by Ask Carolyn.