The GPS companies often market these devices for those who are concerned their spouse is cheating on them.  No special training is required to install or use one of these devices.  To install the device, you must have access to the vehicle.  The quality, however, is dependent upon the type of device and its specifications.  Private investigators usually have the highest quality GPS units and are well trained in their use.

The 64 thousand dollar question is whether use of these devices without the driver’s and/or car owner’s knowledge and consent is legal.  Recently, the United States Supreme Court in the case of U.S. v. Jones, 565 U.S. ___ (2012)  considered whether police could use a GPS tracking device without a warrant to track an individual suspected of trafficking drugs.  In that case, the Court determined that the use of a GPS device to track a suspect without a search warrant was a violation of the Fourth Amendment protection against unreasonable search and seizure.  The Court found that by placing the GPS device on the suspect’s vehicle, “[t]he Government physically occupied private property…” and therefore committed an unlawful trespass.  Until this case, proponents of the legality of GPS tracking argued that there was no reasonable expectation of privacy since what the GPS tracks could also be tracked with the naked eye when the vehicle travels on public roads.

But even this argument was suspect because the vehicle is often on private property when the device is attached (a trespass) and the vehicle may travel on private property in places that could not be monitored with the naked eye.

In North Carolina, to prove common law trespass, the plaintiff merely has to show: (1) that they were in actual or constructive possession of the property; (2) that Defendant made an unauthorized entry; and (3) some damage (or if no actual damages, Plaintiff is entitled to nominal damages).  In addition to trespass by walking on a person’s property, North Carolina also recognizes the tort of trespass to chattels which is a trespass to personal property (like a car).  A successful action for trespass to chattel requires: (1) actual or constructive possession of the personal property at the time of the trespass; and (2) an unauthorized, unlawful interference or dispossession of the property, See Fordham v. Eason, 351 N.C. 151, 155, 521 S.E.2d 701, 704 (1999).

While there are no cases on point in North Carolina regarding whether the use of a GPS tracking device could constitute a trespass, given the U.S. Supreme Court’s decision in Jones and North Carolina jurisprudence, it is our belief that such a claim would be valid in North Carolina by an owner of the vehicle against an individual (and their agents) who planted the device and monitored the data.  Some lawyers have expressed their view that since there are “no prohibitions on the use of such devices”  that they must be legal.  Follow this advice at your own risk!  Relying on bad legal advice, even from your lawyer, is not a defense in North Carolina.

Another possible claim against a person who puts a GPS tracking device on your vehicle under North Carolina law is invasion of privacy.  To prove invasion of privacy in North Carolina, you have to show an intentional intrusion upon the solitude or seclusion of another or his private affairs or concerns and that the intrusion would have been highly offensive to a reasonable person.  See Miller v. Brooks, 123 N.C.App. 20 (1996).   Under NC law, defendants have been found liable for invasion of privacy for such conduct as eavesdropping, wiretapping, peering through windows, persistent telephoning, unauthorized prying into one’s bank account and opening the mail of another.  This too could be a valid claim against an individual for placing a GPS tracking device on your vehicle.

There are additional questions that a court may ultimately be asked to answer including:

1. What if the device is attached to a vehicle while it is parked in public and not on private property?  Our opinion: It would still be a trespass to chattels and possibly an invasion of privacy unless the device is attached by the owner of the vehicle or his or her agent.
2. Does it matter whether the device is used on a vehicle to monitor his wife or her husband?  Our opinion is that it is not a trespass for the device to be used on marital property before the parties date of separation and it is not likely to be considered an invasion of privacy.  However, the answer is simply “unknown”.
3. If used to monitor a spouse, does it matter whether the device is used before date of separation or after?  We think the answer is absolutely.  In the Miller v. Brooks case, Court of Appeals found that wife’s conduct of having a hidden video camera installed in the former marital home after date of separation constituted invasion of privacy.
4. Can an employer use a GPS device to monitor his or her employees without their knowledge or consent?  Employers generally have a right to monitor employees use of employer owned equipment.  If the vehicle is company owned, the employer likely has a right to install a GPS device.  However, it would be good practice to notify the employees in writing of the company practice to monitor company owned vehicles with a GPS device and what data is collected to avoid claims of invasion of privacy.

Until a case with these facts reaches the North Carolina Court of Appeals, the simple answer is that we don’t know whether it is legal or not.

1. Communicate — It is important that both parents communicate with each other about issues affecting your child. When the school sends home information concerning a parent-teacher conference, grades, a book drive, etc., notify the other parent and give them a copy so that they can participate. If you schedule an appointment for the child like a doctor’s appointment, notify the other parent so they can participate. The more information that flows from one parent to the other (and vice versa), the better. Many custody orders require the “free flow of information” between parents about the child. When you do communicate, use the telephone! You can’t believe how negative it is to go into a custody trial and have a parent testify that they try to call the other parent to discuss their child but all they get is voicemail with no return calls or worse that both communicate exclusively by text or email. An exhibit showing the texts and emails exchanged can be disastrous especially if they include barbs and jabs at the other parent that have nothing to do with raising a child. The judge simply does not want to see comments about the father’s “whore girlfriend” and will hold that type of bad conduct against the parent who can’t get past her hard feelings to focus on what is best for the child. Also, communication is not just talking but also listening. Ask the other parent for his or her opinion about issues and listen to what he or she actually says. One tool that helps some parents communicate (and third parties like mental health therapists or attorneys police the communication) is Family Wizard.
2. Don’t put the child in the middle – The child is a child and should not be burdened with the parents’ problems nor empowered to make decisions as if they are an adult. While children can have a say in where they want to live, it is ultimately the judge’s decision and the judge will usually tell the child it is his or her decision and the child’s input will only be a factor and not the final say. Simply put, you are putting too much pressure on a child of any age to ask them to choose. Moreover, if you empower the child to decide this issue now when things don’t work out with the parent they chose, they may think they can change their mind and move to the other parent’s house causing disciplinary problems in both homes and playing one parent against the other. Parents should refrain from discussing the litigation with the child. Also, never say anything negative about the other parent in the presence of the child. Neither party should do anything that diminishes the bond that the child has with the other parent. And don’t use the child to send messages to the other parent (don’t even send the child support check in the child’s backpack).
3. Be accountable – Children are smart. Don’t pretend to be something you are not. If you are fighting for custody because your lawyer told you that you will not have to pay as much child support or because you are concerned about what your mom or some other family member might think, your child will know that you truly do not want to have them with you 24×7. If you are living a lie under any circumstances, you may be alienating yourself from your own child.
4. Make transitions easy – Remind your child they will be spending time with their mom or dad in advance and help them look forward to the time with their mom or dad. Help get them packed and ready for pickup on time. Allow the child to take toys, cell phones, clothing and other items back and forth between the houses so that they will be comfortable having their stuff. When your child returns, don’t question them about the other parent, their house, what they did, etc. If they want to share, they will.
5. Have faith in the other parent — you picked him or her to have a child. Have faith that this person you choose will not put your child at risk. If you have genuine concerns that he or she will put your child at risk, that is something you need to address with the other parent and/or with your attorney.

You should speak with your attorney because every situation is different.  For example, if there is domestic violence, these tips may not be practicable.  However, generally following these tips will improve circumstances for your child whether you are in a battle for custody or not.

Assigning one judge to the matter is the cornerstone of any family court system. Having one judge assigned to all of a family’s matter allows that judge to familiarize themselves with the specific needs of that family and better address the issues specific to that family. There can be many issues facing a family going through dissolution of the marriage – child support, divorce from bed and board, child custody, alimony, equitable distribution, and absolute divorce are several such claims that may be prompted by a separation of the parties. Pursuant to these claims, there are numerous motions and/or interim solutions which could become relevant based upon the circumstance. For instance, ex-parte child custody, temporary child custody and child support, interim distribution, temporary restraining orders, post-separation support, motions and orders to show cause in contempt, and/or motions to compel may become necessary. Many of the facts in each motion or claim may overlap, such as: Post-separation support and alimony, or temporary child custody and child custody. In order to prevent disparate outcomes, long recounts of a family’s history, and uneven applications of the law between claims and so as to provide the opportunity for tailored rulings specific to the details of a particular family, the family court system requires that one judge hear all the issues of one family whenever possible. Having one judge assigned to all of a family’s matter allows that judge to familiarize themselves with the specific needs of that family and better address the issues specific to that family.

In addition, when one judge is assigned to a matter, that matter stays on the judge’s calendar until resolved. Parties are unable to continue a matter so as to get a “favorable” judge or to delay a matter simply to cause the other party hardship. Furthermore, one of the penultimate goals of family courts are to resolve the issues of a family within one year. This one-year goal coupled with the restrictions on continuances cuts down the amount of continuances which will be allowed or tolerated by the Court. According to the 2011 Annual Report on NC’s Unified Family Court Programs which looked at the duration and length of cases over a seven year period, in counties with a family court system, only 22 percent of domestic cases were not resolved within a year as compared to 47 percent in non-family court counties. The seven year average age for cases in family court is 108 days whereas, in non-family court jurisdictions, the average age over the last seven years was 332 days.

Many family courts employ a simple and predictable calendaring system. For instance in New Hanover County, North Carolina, judges typically have a two-week session in each month dedicated to family issues. Each judge’s session is published in advance and the cases on the calendar are organized at an advanced (generally) calendar call. If a matter is not able to be heard during that session, the family court administrators move it to the next session and it remains on the calendar from session to session until it is heard by the Court. For smaller or quicker matters, some judge’s will schedule shorter sessions when time allows.

Since 1999, Family Courts in North Carolina have been providing parents with tailored and efficient resolution of their family law issues. Despite the numerous advantages of a family court system, as of late the family court has been under attack in the North Carolina legislature. Recent moves by the legislature to cut funding to the family court system in North Carolina only means an increase in inefficiency, time, and hardship for the family’s of North Carolina. Rice Law, PLLC, encourages all parents and spouses in North Carolina to write your state representative and let them know that funding for family courts in North Carolina (as well as other specialized courts in North Carolina) should not be cut when there are proven advantages to them being retained.

Court Orders obtained “Ex-Parte” represent a decision of a judge made without the presence of all parties to the controversy.  When a Plaintiff, the person initiating the lawsuit, files the lawsuit, that spouse (or usually their attorney) can approach a judge and ask the judge to enter “Ex-Parte” orders. Common “Ex-Parte” orders include orders regarding the custody of a minor child, injunctions, sequestration orders, and restraining orders.

If the Plaintiff makes allegations that a minor child is exposed to a substantial risk of bodily injury or sexual abuse or that there is a substantial risk that the child may be abducted or removed from the State of North Carolina for the purpose of evading the jurisdiction of North Carolina, the Court can enter an Ex-Parte Order on Child Custody that changes the normal living arrangements of the minor child.

Injunctions are often entered Ex-Parte to prevent the sale, destruction or waste of marital property. Sequestration orders may be entered Ex-Parte to grant an exclusive right of use of a former marital residence to one spouse to the exclusion of another.  Restraining orders may be entered Ex-Parte when there are allegations of regarding specific assets and debts and the use thereof or allegations of domestic violence.

Normally, an attorney’s obligation is solely to their client and only presents their client’s side at a hearing. In an “Ex-Parte” proceeding, however, an attorney’s ethical obligations require the attorney to inform the judge of all material facts known to the lawyer to enable the judge to make an informed decision whether or not the facts are adverse.

After the entry of any “Ex-Parte” order in a family law case in North Carolina, a hearing must generally be held within ten days to allow both parties to present facts and allow the judge to determine whether the order issued “Ex-Parte” should remain in full force and effect, be vacated or modified.

The term “Ex-Parte” is also used to refer to improper contacts with a Judge without notice to the other party or counsel for that party — usually those that occur after the filing of the initial lawsuit.  Once a lawsuit has already been filed, a party and their attorney cannot generally have “Ex-Parte” communications with a judge with some exceptions.

An example of an improper “Ex-Parte” communication made national news in 2009 when a North Carolina judge and an attorney communicated by Facebook regarding an on-going child custody case.   Judge Terry of Iredell County was reprimanded by the NC Judicial Standards Commission for the contact via Facebook.  To prevent the appearance of impropriety, some states (e.g., Florida, Oklahoma) have banned it and others have issued ethical opinions regarding it.

But “Ex-Parte” does not have to be over Facebook, it can be any communication where one party or their lawyer speaks with the judge without the presence of the other side.

While “Ex-Parte” is sometimes appropriate and ethical — especially at the outset of a lawsuit to obtain needed orders, it brings significant risks for the attorneys and the judge.

If you and your child(ren)’s parent(s) are no longer together consider doing some of the following on Mother’s Day:

And now it is nearly always included in child custody orders honoring mom as a day that mom gets to enjoy with her child(ren) regardless of where the child(ren) normally lives.   Many child custody court orders will include language such as the following:

Mother’s Day (2nd Sunday in May)

Even if a period of Secondary Custody falls on or includes Mother’s Day, the children shall be returned by their father to the custody of their mother at 5:00 p.m., on the Saturday before Mother’s Day and the children shall remain in mother’s physical custody until they return to school on the Monday following Mother’s Day.

 So it is critical that child(ren) spend time with their mother on mother’s day unless prohibited by a court order.

There are very rare instances when a mother does not enjoy mother’s day with her child(ren).  Woe unto a father who prevents a mother from spending time with her children in violation of a court order which grants her Mother’s Day.  Most judges are likely to punish the father under these circumstances with contempt of court unless they have a compelling  justifiable reason for failing to comply with the custody order.

The law on relocation differs depending on whether a child’s custody has been litigated, and whether a child’s custody is addressed in a Separation Agreement. If the parties have not litigated issues related to their child and do not have a Separation Agreement, it is possible to relocate immediately inside or outside of North Carolina prior to litigating custody and/or child support. If the new location is in another state, consult an attorney in that state for advice on how much time you must reside there before filing a custody action. Generally, a person is also allowed to take their child and move immediately to a new location if domestic violence is involved.

If parents have litigated custody or have a Separation Agreement, and relocation is not agreed to by both parents, an attorney will likely file a Motion to Modify Visitation or Custody. There are several recent North Carolina cases involving these motions, essentially requesting the court’s permission to relocate. The parties in these North Carolina cases had different reasons for requesting that the court grant their motions, but a similar test was applied by the courts in the cases. The courts considered the child’s best interests to determine whether to modify custody or visitation. A court might also refuse to modify a prior Order unless a substantial change of circumstances has occurred; however, a move for employment reasons is likely a substantial change of circumstances. Based upon these cases, a court will likely use several factors to determine the child’s best interests. These factors include:

…the advantages of the relocation in terms of its capacity to improve the life of the child; the motives of the custodial parent in seeking the move; the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina; the integrity of the noncustodial parent in resisting the relocation; and the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

—Evans v. Evans, 138 N.C.App. 135, 142, 530 S.E.2d 576, 580 (2000).

If a North Carolina trial court uses these factors to determine the child’s best interests its decision is more likely to be upheld on appeal.

A court also has the discretion to reduce child support payments in a case involving relocation. If a court allows relocation of a parent and child, that court will have possibly held that a substantial change of circumstances occurred. As a result, that court may not only modify custody, the court may also modify child support. A court can increase or decrease child support, and a court can deviate from the North Carolina child support guidelines. For instance, a court might suspend a parent’s child support obligation so that the non custodial parent can visit the child in the new location.

Preparation is important when attempting to relocate. It is wise to first consult the other biological parent, and to memorialize any agreement in writing, at which time an attorney can draft a consent order or modification of a Separation Agreement as appropriate. If no agreement is reached, consult an attorney to prepare a Motion to Modify Visitation or similar action, and also consider child support. In all cases, your ability to relocate will depend on what is in the best interests of your child.

In child custody cases, judges are required to consider the best interests of minor children and their safety. Allegations of substance abuse — of any nature including but not limited to abuse of alcohol, illegal drugs, prescription drugs, etc. — must be taken seriously. When allegations of substance abuse appear to be supported by evidence, the Court will often order drug testing to verify whether substance abuse is a problem. In making the determination whether to order drug testing, the judge will consider the credibility of the testimony, whether the party admits to substance abuse, past history including criminal charges for drug use, other evidence and risk/danger to the child. Since inaccurate accusations are common, some judges are reluctant to order testing based upon a mere accusation of substance use/abuse. Outside corroboration is often best obtained through affidavits of eye-witnesses of through the use of a private investigator.  Private investigators like Cape Fear Investigative Services can perform trash pulls and look for evidence of drugs and even swipe door handles to test for drug residue.

Nationally, about 21.2% of adults age 18–25 use illicit drugs according to the Substance Abuse and Mental Health Services Administration.  Of adults 26 years of age or older, about 6.3% use illicit drugs but nearly 20% of adults age 26–34 report binge drinking. Rates of marijuana use in nearly every age group is on the rise. Statistically, males are more likely to be drug users than females and drug use is also higher among those unemployed. See the complete 2009 results.

A judge can order the cost of drug testing be paid by either party and is in the discretion of the Court. The type of drug testing is also in the discretion of the court. A urine screen is quick and relatively inexpensive but is easily subject to manipulation of results (e.g., drinking large amounts of water in advance of the test) and the look back period is very limited often to less than one week. A hair follicle test is more expensive but often provides much better results over a longer period of time. And a test of a fingernail is even better for some purposes.  We often use ARCpoint in Wilmington, NC for drug testing results.

When a party has a problem with drugs, the best approach is to get a substance abuse assessment and follow the treatment recommendations — even in-patient treatment if needed. By showing a pattern of recovery, the party is best able to convince the Court that the problem is admitted, is being addressed and that management of the problem is on-going.

Mental health experts can also perform a substance abuse assessment and often use the Substance Abuse Subtle Screening Inventory (SASSI) as one mechanism to help identify individuals with a high probability of having a substance dependence disorder.

When dealing with accusations of substance abuse in a child custody case, it is important to have legal counsel and a plan of action in place to refute false accusations or embrace true accusations and put a safety plan in place that allows the parties to have quality time with their children.

The rationale for this varies. Some mothers say they are uncomfortable at schools and social events. Others claim the children are embarrassed or the name is inconvenient and creates confusion for third parties.

In some states, a mother who has remarried may informally change a child’s surname to the step-dad’s name, regardless of whether the biological dad pays child support and exercises his visitation rights. Patricia Cook, What’s in a Name? The National Father’s Resource Center (2005) at fathers4kids.org.

Some states recognize that when there is a divorce and the mother is given custody of the children, the bond between the father and his children may be weakened if the children’s surname was to be changed. Therefore, some states do not allow a change of name against the father’s objection, merely to save the mother and child inconvenience or embarrassment. Robinson v. Hansel, 223 N.W.2d 138 (Minn. 1974). Other states will allow the name change if it is in the best interests of the minor children. See In re Application of Saxton, 309 N.W.2d 298, 300-01 (Minn. 1981); LaChapelle v. Mitten, 607 N.W.2d 151, 166 (Minn. App. 2000); Gleason v. Michlitsch, 728 P2d 965 (Or. App. 1986); Flowers v. Cain, 237 S.E.2d 111 (Va. 1977); Laks v. Laks, 25 Ariz.App. 58 (1975).

But this is absolutely not the case in North Carolina. The only way a child’s name can be changed in North Carolina is if both parents agree. In the Matter of the Change of Name of Crawford, 134 N.C.App. 137, 517 S.E.2d 161 (1999); N.C. Gen. Stat. § 101-2(d). It does not matter if it is in the best interests of the child. It does not matter if it leads to confusion or embarrassment or anything else. If one parent says no, the only way the name can be changed is by the child once that child reaches the age of eighteen.

And if the parent attempts to informally change the name in North Carolina, that might be viewed as parental alienation and a violation of the child custody order which may be punishable by contempt including jail time.

As one might have guessed Eunice H. Chapman did not have the same legal standing and property rights as women have in modern society.  When Eunice married James Chapman she lost her property rights and legal standing as an individual. As a result, when her husband attempted to reconcile only to be rebuffed by Eunice, her husband took the remaining property and their three children to the Shaker religious group. 

It is worth pointing out that Eunice did not want to reconcile for a couple of reasons. First, James was notorious for drinking and wasteful spending, leading to him selling much of the couple’s property before abandoning his family. Second, James claimed to have changed and wanted to live in Shaker society in which the couple would not live together alone as Husband and Wife. Eunice was not interested in the type of life offered by Shaker society, and this refusal set off the battle between Eunice and the Shaker religious leaders of James’ group.

These events leading to Eunice’s extraordinary acheivement are very interesting. At first, Eunice maintained custody of her three children until her husband and the Shaker leaders lured Eunice away from her home and then removed her children and the remaining property from the home. For a couple of years Eunice attempted to settle custody with the Shaker leaders, without success.  Eunice was determined to get her divorce and custody so she sought the assistance of the New York legislature. Around 1817, after years of talking in person and writing to the NY assemblymen, Eunice was given a “legislative divorce” from her husband, and no actual trial occurred. Even Thomas Jefferson noticed and commented on Eunice’s case. 

Eunice may have received her divorce, but she did not have custody of her children yet. She reportedly resorted to gathering a mob to go to the Shaker group that had possession of her three children. Again, Eunice remarkably overcame the religious leaders by getting her three children back.

New York law later changed around 1966 so that a divorce was not solely dependent on proving adultery.  In the majority of states the law is either based on a “no fault divorce”, or the divorce law is dependant on a period of separation, as in North Carolina.  However, religion does still play a role in some custody disputes. (For more information see Richard Kern’s Article: Custody and Religion). 

The current news is full of interesting court cases about marital rights, multiple marriages, and interstate custody battles, but Eunice H. Chapman’s remarkable legal battle is truly noteworthy. Litigants in 2010 are understandably frustrated by the amount of time required to get a divorce, but their divorce and custody matters usually only last one to two years. In light of the many years spent in pursuit of Eunice H. Chapman’s legislative divorce the modern legal system has come a long way.