Local News Story Reminds Us of Contract Law Remedies

September 2, 2010 | Mark Spencer Williams | Family Law, Prenuptial, Wedding Planning | No Comments

The Wilmington Star News  and WWAY reports today that “Orton Plantation backs out of contracts for upcoming weddings.”  The article  suggests that as a result of  Louis Moore Bacon’s, a billionaire hedge fund trader, purchase of the plantation that contracts to host weddings at the plantation will not be honored.

These couples are facing huge damages according to the article in that they have already booked vendors and entered into other contracts from which they may not be able to extricate themselves.  Flowers, cakes, catering, hotels, etc. all cost money and a botched wedding may cost a couple tens of thousands of dollars.  According to one website, the average cost of a wedding in the Wilmington, NC area is between $17,122 and $28,536.  Some couples and their families spend significantly more.  Chelsea Clinton’s wedding reportedly cost between $3 and $5 million according to various websites.  Given the high stakes, couples should consult with an attorney for legal advice when planning their wedding but few actually do.

Contract law in North Carolina allows a lawsuit for breach of contract and in some cases, for specific performance.  It is important to consult an attorney for legal advice before signing a contract for these services.  The contracts that the vendor asks you to sign are often written in their favor after consulting with their lawyer.  But even so,  a vendor who breaches a contract may be subject to a lawsuit to recover damages and in some cases, may be ordered to perform the contract.

Just as a couple might be able to bring a lawsuit for breach of contract against a vendor who fails to perform, the would-be bride (or groom) may also be able to bring a lawsuit against their former fiancee for breach of contract.  North Carolina recognizes a claim by a person engaged to be married against another who breaks the engagement for “breach of promise to marry.”  Any person, who without justification, fails to carry through with a promise to marry is subject to suit for damages.  These claims have been filed in New Hanover County and upheld.  And a breach of promise to marry is one of the few contract claims that allows for punitive damages. 

The potential damages in a breach of promise to marry case are significant.  Couples planning marriage should have an attorney help guide them through the process to avoid the potential pitfalls.  Wedding planners are typically not licensed to practice law and therefore, can’t give legal advice about the contracts that need to be signed.  In addition to dealing with prenuptial agreements — some designed to help preserve a marriage — attorneys may now be helping couples deal with the legal issues associated with planning their wedding.

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Retroactive Pay Available for Some Troops

August 12, 2010 | Mark Spencer Williams | Military Law | No Comments

Time is running out to apply for a special “Stop-Loss” retroactive pay.  The pay is available for certain service members of the US Armed Forces and surviving spouses.  The special pay was approved by Congress as part of the 2009 War Supplemental Appropriations Act.  Service members and veterans who involuntarily served or were on “Stop Loss” from Sept. 11, 2001, to Sept. 30, 2009, are entitled to $500 for each month served past their contracted end-of-service, resignation or retirement date.  See http://www2.marines.mil/unit/hqmc/Pages/Timerunningoutfortroops,veteranstoclaim%e2%80%98StopLoss%e2%80%99pay.aspx for more information. 

Rice Law encourages all eligible military service personnel and their dependents to apply for the available funds.

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Plan Ahead to Survive the Incompetency and Guardianship Process

July 30, 2010 | Stephen Domer | Estate Planning, Family Law | No Comments

 

The number of persons aged 65+ in North Carolina increased 25.7% between 2000 and 2010. Between 2010 and 2030, North Carolina’s 65+ population is projected to increase by over 400,000 persons per decade, reaching 2.14 million by 2030. (Source: NC Office of State Budget and Management)

More and more boomers are faced with the daunting challenge of caring for their parents because the safety net for older adults is facing imminent threats. Social Security, Medicare and Medicaid programs will potentially decrease benefits to elderly Americans, thus increasing the responsibility of adult children to manage their parents lives as they struggle with Alzheimer’s disease and dementia. The United States government and local governments have attempted to adapt to these necessary changes, but the system has become even more difficult to understand. It is important to find an attorney that knows the relevant laws and system because the incompetency and guardianship process can be difficult and stressful.

As a hypothetical, imagine an elderly member of your family is showing signs of dementia. She cannot take care of herself and is living in unsanitary conditions, but due to the onset of dementia she refuses care. Moreover, due to her dementia she is confrontational about accepting assistance from you or anyone in her home. What do you do?

The hypothetical is becoming a common challenge due to the growing elderly population. In North Carolina, the legal system provides an option to have an individual declared incompetent and a guardian appointed, either an individual, corporation, or public agent. See N.C. Gen. Stat. § 35A-1112 and N.C. Gen. Stat. § 35A-1214. The person filing the petition is the petitioner, and the petitioner is often a family member that has the best interests in mind of their family member, the respondent.

An incompetency and/or guardianship hearing is conducted in front of the Clerk of Court as either a bench trial or a jury trial. The petitioner and respondent are entitled to present testimony and documentary evidence, so the proceeding is much like any other court case. In North Carolina, the petitioner pays the filing fee and sometimes the guardian ad litem costs, but the petitioner is not required to pay some of the costs as long as they have reasonable grounds for their action. Moreover, if the respondent is declared incompetent, the respondent or their estate will likely be charged the guardian ad litem’s attorney fees and costs.

The respondent will be appointed a guardian ad litem, which is a member of the local Bar. The guardian ad litem should perform a thorough study of the individual’s current mental state, but the guardian ad litem is unlikely to favor the petitioner because “The guardian ad litem shall present to the clerk the respondent’s express wishes at all relevant stages of the proceedings.” See N.C. Gen. Stat. § 35A.

At the first scheduled court date the petitioner can move that the Clerk order a physician to perform a multi-disciplinary report on the individual. The multi-disciplinary report is a basis for the Clerk to decide whether the respondent is incompetent in the opinion of a trained medical professional.

N.C. Gen. Stat.§ 35A-1112(d) provides in relevant part that “If the finder of fact, whether the clerk or jury, finds by clear, cogent, and convincing evidence that the respondent is incompetent, the clerk shall enter an order adjudicating the respondent incompetent.”

N.C. Gen. Stat. § 35A-1112(e) on guardianship provides in relevant part that “Following an adjudication of incompetence, the clerk shall either appoint a guardian” or transfer it to the appropriate county to appoint the guardian.

If the Clerk or jury finds the respondent incompetent, the Clerk will issue an Order setting forth the nature of the guardianship and name of the guardian, powers and duties of the guardian, and the identity of the agency, if any. The Clerk can also order a limited guardianship based upon the nature and extent of the ward’s incompetence. N.C. Gen. Stat. § 35A-1215. The best option for a guardian is an accountable and responsible individual capable of handling the ward’s financial, legal and medical issues.

These proceedings are contentious if attorneys are representing the parties. The process can be worthwhile if the petitioner has the best interests in mind so that the respondent can receive the care they need. All parties to this proceeding should take their role seriously by seeing the big picture of what is likely to occur, especially in the case of an elderly family member, as it is too late to begin this process once an incident occurs which leads to a quick death.

In some cases the solution is proper estate planning. All adults should have a Health care Power of Attorney, Durable Power of Attorney, and Will. In a properly drafted power of attorney the option is provided to nominate a potential guardian. This becomes important if a doctor declares their patient incompetent, at which point the patient’s power of attorney takes effect, including the nominated guardian. In this scenario, proper estate planning likely prevents a costly court battle.

The number of elderly North Carolinians with Alzheimer’s Disease is projected to increase from 170,000 in 2010 to 210,000 in 2025.  (Source: Alzheimer’s Association, 2010 Alzheimer’s Disease Facts & Figures) 

 

Disclaimer: This information is only applicable to North Carolina. We strongly recommend that you consult with a licensed attorney concerning your matter.

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

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The Adoption Tax Credit and You

July 21, 2010 | Richard Forrest Kern | Family Law | No Comments

 

Adoption is not just for the wealthy and Hollywood elite anymore. Adoption is now more affordable then ever with new and improved federal tax credits geared toward promoting adoption among middle income families.

An adoption tax credit for qualified adoption expenses is available to middle income families pursuant to Section 23 of the United States Internal Revenue Code. The adoption tax credit encourages adoption by helping families afford the attorney fees, court costs, and other expenses associated with adoptions and is now more accessible due to new legislation contained in the Health Care and Education Reconcilliation Act of 2010. The Credit does not apply to Stepparent adoptions. Besides the Credit, If your employer paid qualifying adoption expenses, they may be excludable from your gross income.

For purposes of this topic it is best to first differentiate the different types of adoption which could be applicable in a particular matter: 1) The Domestic adoption, an adoption within the U.S.; 2) International adoption -where a child born outside the U.S. is brought into the U.S.to live with the adoptive parents; and 3) the adoption of a special needs child

There is new legislation on the horizon. In both the Senate and the House of Representatives are Bills that could help promote adoption even further. Thereby promoting adoption for children so as to provide them with better lives and better future. H.R. 213: Adoption Tax Relief Guarantee Act of 2009

In 2009, the tax credit for adoption was increased amounting to $12,150.00. Now H.R. 3590 includes a provision to extend the adoption tax credit until December 2011 and it has increased tax credit to $13,170.00 for adoptions made after January 2010 and has an adjustment for inflation in 2011. This bill also allows the tax credit to be refundable. However, pursuant to the middle income family tax relief purpose of the Adoption tax credit;If your AGI is more than $182,180.00 then the tax credit amount is phased out and if your AGI is more than $221,180.00 then you cannot claim the tax credit or the exclusion.

In order to qualify, a person seeking to claim the tax creditmust adopt a child and pay the applicable expenses of the adoption, these expenses may include many none qualifying expenses as well as qualifying expenses. Nonqualified expenses are those that violate state or federal law, expenses for carrying out any surrogate parenting arrangement, expenses for the adoption of a spouse’s child (hence, stepparent adoptions do not qualify for the adoption tax credit), expenses for which you have received funds under any federal, state or local program, expenses allowed as a credit or deduction under any other federal income tax rule, expenses paid or reimbursed by your employer or any other person or organization or those paid before 1997. Given the nature and accessiblilty of the adoption tax credit, adoptions become more affordable for middle income families and children in need of a home are now more likely to be adopted by a family. Adoption is a great option for those persons and couples seeking to start a family and who, by biology or gender, cannot produce a child of their own. There are many children in the Unites States and abroad who could use parents and no longer should the cost of adoption alone hinder good parents from adopting good children.

   Disclaimer: We strongly recommend that you consult with a licensed tax attorney concerning your specific matter and circumstances.

  

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from a layperson’s percpective. The purpose of this article is to inform the non-lawyer who may read current status of the adoption tax credit. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction, specifically tax law.

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Custody and Religion: To What Lengths May a Court in North Carolina Consider Religion in Determining the Custody Arrangement that is in the Child’s Best Interest

| Richard Forrest Kern | Family Law | No Comments

  “[a] parent … has a fundamental constitutional right to religious freedom under the First Amendment, yet judges may consider the spiritual welfare of a child, as evidenced by the attendance of church or participation in religious activities, in reaching their decision on custody); MacLagan v. Klein, 123 N.C.App. 557, 565, 473 S.E.2d 778, 784 (1996) (awarding parents joint legal custody, but granting father exclusive control over child’s religious upbringing), overruled on other grounds by Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998). In re Huff, 140 N.C.App. 288, 296, 536 S.E.2d 838, 843 (2000), appeal dismissed and disc. review denied, 353 N.C. 374, 547 S.E.2d 9 (2001) (stating that inquiry as to religious practices must be particular and not rise to the level of an inquisition); Dean v. Dean, 32 N.C.App. 482, 483-84, 232 S.E.2d 470, 471-72 (1977) (stating the trial court may not base its findings on any particular faith or religious instruction); Petersen v. Rogers, 111 N.C.App. 712, 718, 433 S.E.2d 770, 774 (1993), reversed on other grounds, 337 N.C. 397, 445 S.E.2d 901 (1994) (“Questioning of witness as to particular religion’s beliefs about Jesus Christ and accuracy of religion’s materials and beliefs was unacceptable in court proceeding to determine custody of child since questioning did not in any way relate to child or effect on child of custody petitioners’ involvement in this religion; although witness expressed concern over some of religion’s practices, she had never met petitioners or child and thus, none of her testimony could have related to present or possible future effect of petitioners’ religious practices on child and unless evidence of such practices could be put in context of this particular family, it was irrelevant.”).

 

 

　

　

 

Generally, Joint legal custody means that the two parents consult and decide together what long-term decisions are in the best interest of their child. It is assumed in North Carolina that a fit parent makes decisions that are in their child’s best interest. In a sole custody situation, the parent enjoying sole custody has the authority to make such decisions. In North Carolina, a Court may delegate certain areas and topics regarding decision-making authority to a particular parent, even in the context of joint legal custody. However, according to some North Carolina case law, if a Court delegates all decision-making authority to a single parent, then North Carolina Courts will consider the parent with sole decision-making authority to be in sole custody of the child despite language in the child custody order purporting to convey joint legal custody. These concepts are important for parents to understand because in many joint custody arrangements disagreements arise as to what is in the child’s best interest with regard to their spiritual upbringing.

A North Carolina Court may inquire as to the religious practices of parents to determine the effect of certain religious practices with regard to the physical, mental, and spiritual health of a minor child and may use the information gained as a factor in determining which custody arrangement will best promote the best interests of a child so long as the inquiry is: a limited inquiry related to the impact that the practices of the religion have upon the child and/or the parents’ ability to promote attendance or instruction in a religion. This information may be used as one factor in determining the custody arrangement that serves the child’s best interest so long as the Court does not preference any particular faith or religious instruction in making their determination. Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994) (

In Dean, the Court of Appeals stated the “trial court properly considered wife’s failure to take five-year-old child to church and Sunday school, and consideration of such fact did not violate constitutional provisions concerning separation of church and state.” Dean, 32 N.C.App. at 483.

In MacLagan, the North Carolina Court of Appeals went further by declaring proper the decision of the trial court that the father of a child have exclusive decision-making authority over his child’s religious upbringing. The Court of Appeals overcame the mother’s argument that the trial court had shown religious preference in allowing the father (who was Jewish) to be the sole decision-maker as to the child’s religious upbringing as opposed to the mother (who was Christian) by citing the undisputed facts in the trial Court’s record that: 1) the parties had agreed to raise the child in the Jewish faith before they separated; 2) the child was raised in Judaism since the age of three; 3) the child had substantial involvement in her father’s Synagogue; and 4) the child had increased stress and anxiety due to her being raised in two conflicting religions “which have had a detrimental effect on [the child’s] emotional well-being.” MacLagan, 123 N.C.App. at 569-570.

It is noteworthy that the cases cited above, in large part, contain dicta and language to suggest that the inquiry into religious practices may not be the sole determinative factor in either custody or in delineating certain areas of the decision-making authority with regard to spiritual well-being, most of the cases above point out specifically that the trial court did not rely solely on the inquiry into religious practices to make their determination.

Another interesting potential situation regarding this topic is what should a Court do when a child desires to make his/her own decisions regarding their own religious upbringing.

The Constitutional rights of children have been acknowledged by courts all over the United States in a growing number of cases over the last couple decades. Children have protected Constitutional rights with regard to: their religious beliefs, expression, privacy, procedural due process in criminal and civil matters, and even with respect to double jeopardy. However, most of the United States Supreme Court cases recognizing the Constitutional rights of children involves a conflict between a child and the State/government and does not relate to a child’s Constitutional rights in relation to the conflicting rights of a parent. It is likely that a child may not even have standing to contest their parent’s decisions with regard to religious upbringing in most foreseeable situations as the conflict would likely not have a basis in governmental action which would be a necessary element for any Constitutional challenge.

It is well-established that fit natural parents have a Constitutionally protected right to raise their child as they see proper, including but not limited to deciding with whom that child associates. Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994). In Wisconsin v. Yoder, 406 U.S. 205 (1972), the United States Supreme Court specifically avoided the question as to conflicting Constitutional protections as between Amish parents and their children when the Court stated:

 

Contrary to the suggestion of the dissenting opinion of MR. JUSTICE DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it [406 U.S. 205, 231] is their right of free exercise, not that of their children, that must determine Wisconsin’s power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary. The State’s position from the outset has been that it is empowered to apply its compulsory-attendance law to Amish parents in the same manner as to other parents – that is, without regard to the wishes of the child. That is the claim we reject today.

 

Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious up-bringing and education of their minor children recognized in this Court’s past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here [406 U.S. 205, 232] and those presented in Pierce v. Society of Sisters, 268 U.S. 510 (1925). On this record we neither reach nor decide those issues.

 

In Wisconsin, 406 U.S. 205, 230-231 (1972). However, Justice Douglas wrote in his dissent that that majority decision left the children under the yoke of the parents and that by not addressing the relationship between the constitutional rights of the parents and those of the children, the children’s constitutional rights were effectively abrogated by imposition of the parents religious views upon the children.

Under North Carolina law, the question of priority regarding a child’s Constitutional rights of free exercise of religion versus that of a parent seems unsettled as much as it is in the national context. The question is: at what point can a state enforce a child’s constitutional rights as against a parent’s right to raise their child?

In conclusion, North Carolina Courts may consider which parent is better suited to care for a child’s spiritual upbringing and may use this consideration as one factor in determining the custody arrangement that is in the best interests of the child. The Court may also order that one parent or the other have sole decision-making authority as to the child’s spiritual upbringing. However, it is unclear whether or to what degree courts may enforce a child’s wishes regarding their spiritual upbringing as against the decisions of their parents or parent.

Disclaimer: This information is only applicable to North Carolina. We strongly recommend that you consult with a licensed attorney concerning your matter.

  

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer who may read current status of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

Read Custody and Religion: To What Lengths May a Court in North Carolina Consider Religion in Determining the Custody Arrangement that is in the Child’s Best Interest »

Rice Law joins Child Centered Divorce Month

July 19, 2010 | Mark Spencer Williams | Family Law | No Comments

http://www.childcentereddivorce.com. For information of Dr. Gates and Denise Scearce programs, visit http://gatewaypsych.com/workshops.

Throughout North America, the 4^th annual recognition of National Child Centered Divorce will take place. This month we will focus on your children’s needs while transitioning through divorce.

Divorce can be a grueling battle that can negatively affect your children. Divorce is the death of a marriage and like death, many of the same emotions including grief, sadness, anger, doubt and fear are part of the divorce process. A divorcing parent is not the only one going through this difficult and trying time, the children regardless of their age, also suffer and have some of the same feelings as a divorcing parent does. It could lead to a child’s mistrust, anger, grief, depression and low self-esteem. It could affect their academics, behavior and coping skills. In this month of awareness, professionals are attempting to raise awareness of the issue to help divorcing parents achieve a more peaceful and knowledgeable divorce by focusing on your child’s needs.

Some of the worst things a parent can do that could have damaging effect on children during your divorce include: letting anger control them; speaking badly of their spouse to their children; and making the children feel that they have to choose sides. Parents have to polish up on their communication skills. Requiring the child to play messenger between parents is unfair and destructive. And don’t be a show off to your child, you don’t have to show him you are a “better parent” than the other. A harmonious and peaceful relationship for the sake of your child is best.

Rice Law has created a divorce workshop that will help you make the right decision. A decision not based on anger but a well thought out decision to have a peaceful and harmonious atmosphere for the children and for you. We recommend that you attend co-parenting classes for divorced parents to better understand how to help your child through your divorce. Dr. George Gates and Denise Scearce offer workshops in shielding children from conflicts that could arise from a badly handled divorce situation. We recommend you to go through counseling and talk to a mental health professional about the situation. Counseling is an important source of support for dealing with your emotions and feelings. It can also help you make rational decisions that are in your family’s best interests rather than approaching divorce as an ‘all out war.’ If all else fails and a divorce is necessary, take steps that will have positive, peaceful results for your children’s sake.

Avoid conflicts and get the support you need. Avoid putting your children in a situation you cannot handle in the future. You can find more information about Child-Centered Divorce Month at:

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Everyone needs a Last Will & Testament

May 20, 2010 | Mark Spencer Williams | Estate Planning, Family Law | No Comments

You should prepare and execute a will to protect your loved ones. Even if you don’t care about who gets the property, making end of life planning decisions will save your family and friends a great deal of grief.

A will is a basic component of estate planning. It specifies how your assets will be distributed after your death, and who will receive them. Without a will, North Carolina law will determine how your estate is distributed. Without a will, a spouse will usually get the entire estate if there were no children and the person’s parents are deceased. If there are children and/or a parent survives, the spouse’s share drops to a set amount and property is divided among parent(s), children, and lineal descendants.

Despite the importance of a will, a quick search of the Web shows that a slight majority (55–60%) of all adults in the United States do not have a Last Will & Testament. I believe this statistic is probably true because when we meet with clients, few clients tell me they have wills.

As part of any good estate plan, you need to make sure that non-probate assets have named beneficiaries. Use of payable on death (POD) accounts and in some cases, trusts, can reduce your tax exposure. Naming your estate as a beneficiary of a life insurance policy can have horrible tax consequences. Another attorney recently told me she did not know how to break the news to a family that consulted with her to handle their father’s estate that because the life insurance was made payable to the estate instead of named beneficiaries; they would owe almost half in taxes to state and federal authorities.

In the context of separation and divorce, a spouse loses the right to take under intestate succession upon a divorce and loses other rights such as the widow’s share. Also, provisions in a will in favor of a spouse are revoked upon a divorce. You should speak with your family law attorney in detail to understand how these laws affect you.

Perhaps as important as a Will is having a Durable Power of Attorney — a legal instrument that allows another person to act for you and is effective even though you may be incapacitated. When an individual becomes incapacitated — due to mental or physical disability or other reason — a trusted love one can continue to make financial decisions for them without the cost and expense of a guardianship/incompetency hearing. A Health Care Power of Attorney allows a loved one to make health care decisions for you in the event you are unable and a Living Will (also known as a Declaration of a Desire for a Natural Death) allows you to make advance health care directives.

We strongly recommend that you review your entire estate plan and have an up to date Last Will & Testament, Durable Power of Attorney, Health Care Power of Attorney, and Living Will. You should review and update these documents regularly and immediately upon a life change such as birth of a child, move to another state, marriage, separation or divorce.

Our attorneys routinely help clients with their estate planning needs and we are happy to assist you.

Disclaimer: This information is only applicable to North Carolina. We strongly recommend that you consult with a licensed attorney in the State of North Carolina concerning your estate planning needs.

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Spousal spying: Watch out if you are watching your spouse

May 17, 2010 | Richard Forrest Kern | Family Law, Privacy Rights | No Comments

When it comes to spying on one’s spouse, be careful what you wish for—not only may it destroy your marriage, you may expose yourself to criminal and civil liability.

An introduction to spying

If you must spy on your spouse, educate yourself on the laws of your jurisdiction and the federal laws on the topic; knowing when you are under the purview of the state, federal, or even common law is extremely important as it vastly affects how and to what extent you may spy on your spouse. The safest course of action is to seek legal advice from a licensed attorney before you spy. And hire a licensed and respected private investigator instead of conducting your own surveillance.

The law treats government spying and individual spying differently.

There are differences in the law’s treatment of surveillance based on who is doing it. Generally, the law is more restrictive regarding government and law enforcement spying than then it is when private individuals are doing the surveillance and even less restrictive for parents monitoring their minor children. However, many boundaries still exist regarding private individuals, and some spying could leave individuals open to being sued civilly or charged criminally in some circumstances.

Criminally, several charges could be levied against someone for spying on another person, including trespassing or federal wiretapping charges. These are serious crimes and one could face imprisonment and be required to make financial restitution. Tortious Invasion of Privacy and other Civil liability could apply.

Tortious Invasion of Privacy by Intrusion

North Carolina recognizes an action based on an invasion of privacy by intrusion. Invasion of privacy by intrusion is defined as: “One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.” North Carolina does not recognize a cause of action for the invasion of privacy by disclosure of private facts or invasion of privacy by placing a plaintiff in a false light before the public.

Specific examples of intrusion include: “physically invading a person’s home or other private place, eavesdropping by wiretapping or microphones, peering through windows, persistent telephoning, unauthorized prying into a bank account, and opening personal mail of another.”

In other words, certain areas may be off-limits to even a spouse. For instance, a video camera installed in a bathroom may be tortious as a reasonable person would likely find it “highly offensive” even in the context of a marriage. No cameras or audio recorders should be employed in a toilet area, shower area, or bedroom area of a spouse.

Interception of oral communications and electronic communications

In North Carolina N.C. Gen Stat. § 15A-287(1)(a) states:

1. Except as otherwise specifically provided in this Article, a person is guilty of a Class H felony if, without the consent of at least one party to the communication, the person:

1. Willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication.

2. Willfully uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:

1. The device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communications; or

2. The device transmits communications by radio, or interferes with the transmission of such communications.

2. Willfully discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through violation of this Article; or

3. Willfully uses, or endeavors to use, the contents of any wire or oral communication, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication in violation of this Article.

Consent by at least one party to a conversation is required before recording a conversation between people. In North Carolina, if you are a party to the conversation, you may consent to your conversation being recorded but you cannot record a conversation to which you are not a participant. Therefore, you cannot legally record a call between your spouse and another person without at least one of them consenting to the recording—even if the conversation is between your spouse and your child. If one person is in another state and not in North Carolina, it may be illegal to record the conversation. Many jurisdictions, including North Carolina, have recognized that parents may vicariously consent on behalf of their minor children to the interception of their conversations. A custodial parent may vicariously consent to the recording of a minor child’s conversations, as long as the parent has a good faith, objectively reasonable belief that the interception of the conversations are necessary and in the best interest of the child. The doctrine of vicarious consent has been applied to parental eavesdropping on conversations between the other parent and their minor children and third parties such as a babysitter or nanny. You must use extreme caution before taping any conversation and we strongly recommend you speak with a licensed attorney to fully understand your rights and responsibilities.

Silent covert video surveillance

Only oral communications are covered by N.C. Gen Stat. § 15A-287(1)(a), and thus, videotaping of a spouse without an audio recording would not be a violation of state and federal wiretapping laws.

Video surveillance by private parties, does not implicate the Federal Constitution’s Fourth Amendment. In, State v. Diaz, 308 N.J. Super. 504, 706 A.2d 264 (App. Div. 1998), it was held that the actions of a child’s parents in contracting with a private company to install audio-video surveillance equipment in their home, for the purpose of observing a babysitter who they suspected of abusing the child, did not implicate the federal or state constitutions, because the allegedly unlawful videotaping was performed by private individuals and not by the government or its agents and the parents vicariously consented to the audio capture on behalf of their child. The denial of the babysitter’s motion to suppress the videotape from evidence, at her trial for aggravated assault and endangering the welfare of a child, was affirmed.

The acquisition of an image is not an interception of a wire or oral communication because the contents of a conversation are not captured. Video surveillance is not the interception of an electronic communication because there has been no interception of the image while it is being transmitted. The audio portion of a videotape is an oral communication and would be subject to the rules discussed above.

However, remember the rules stated above regarding tortious invasion of privacy. Placing a video camera in a private place like the bedroom or the bathroom could still expose you to civil liability.

GPS tracking of a private vehicle

Electronic tracking devices do not “intercept” contents of any wire or aural communication and because the vehicle is traveling on public roads in view of everyone who passes, there is likely no intrusion upon the solitude or seclusion of another or his private affairs or concerns and it also likely not to be offensive to a reasonable person. If the vehicle is titled in your name and it has not been sequestered by contract or court order in favor of your spouse, there appears to be little concern over placing a GPS tracker on the vehicle. Placing such a device on a vehicle that you do not have an ownership interest in, however, could be a trespass to chattels and you could be liable in tort for financial damages. Always consult a licensed attorney before taking any action.

Email & the Internet

If you are still living with your spouse and you are not separated, then when considering other forms of communications such as email communications and the like, the key is: whether your spouse has an expectation of privacy that could be invaded. Even if your spouse previously gave you their email password or computer password, they may still have an expectation of privacy and violation of that privacy could open you up to criminal and/or civil penalties. Ask yourself; for what purpose did my spouse give me his or her password? Do not exceed the scope of that purpose. The use of certain programs like spyware, keystroke recorders may be permissible or illegal depending on the technology employed by the software and whether you continue to live with your spouse.

Once separated, access to your spouse’s email without permission is likely a violation of federal and state wiretapping laws even if you had permission prior to the separation.

Conclusion

The most important thing to remember is that any surveillance must be legal, reasonable, and not overly intrusive. The status of the parties (e.g., separated or not, minor child, or spouse) and the facts surrounding the type of surveillance will affect the legality and permissibility of it. Criminal penalties including jail time and civil financial penalties may be assessed for illegal and improper activities. Some surveillance may be legally conducted by a licensed private investigator for which an unlicensed individual could face sanctions. This area is fraught with such significant and serious risk both financially and to your very liberty, that you absolutely must develop a plan with your attorney before taking any action.

Author’s Note: This article is in no way meant to be a comprehensive analysis of privacy law or surveillance of a spouse. The purpose of this article is to impress on the non-lawyer who may read it, the importance of considering all aspects and consequences of their actions and to outline generally some commonly unknown consequences of such for those who may be unaware. The reader interested in learning more should contact their attorney or perform additional research as more than anything this article should promote the commencement of a thorough discussion of these matters.

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