March 2011 Archives

Tennessee's Standard for Finding a Child "Dependent and Neglected"

March 31, 2011 by The McKellar Law Firm, PLLC

sad kid.jpgMany people think that the only reason for courts to get involved with parents' right to raise their children is when there is obvious physical abuse, sexual abuse, or neglect. However, the standard for dependence and neglect includes much more than that. Once a child is considered dependent and neglected, a court can determine custody arrangements that would be in the best interest of the child.

In Tennessee, a dependent and neglected child includes the following:
1. A child without a parent or guardian;
2. A child whose parent, guardian, or person the child lives with is unfit to care for the child due to cruelty, mental incapacity, immorality or depravity;
3. A child who is under improper care or supervision by any person, agency, or organization;
4. A child who is unlawfully kept out of school;
5. A child whose parent or guardian neglects or refuses to provide necessary medical care for the child;
6. A child, who because of a lack of supervision, is found anywhere that is unlawful;
7. Any child who is under improper care which would lead to injury or would endanger the morals or health of the child or others;
8. A child who is suffering from abuse or neglect;
9. A child who has been allowed to engage in prostitution or obscene photographing and whose parent fails to protect the child from further activities;
10. A child willfully left in the sole financial and physical care of a relative for more than 18 months, and the removal of the child from the care of the relative would result in substantial harm to the child.
Tennessee Code Annotated §37-1-102(b)(12)

While abuse and neglect is included in the factors for finding dependency and neglect, it is certainly not the only factor. Parents should be aware of the standard for finding a child dependent and neglected, and ensure that they are providing adequate care for their children.

Proposed Bills in Tennessee Legislature Could Impact Divorce and Custody Cases

March 28, 2011 by The McKellar Law Firm, PLLC

Currently, there are several proposed legislation changes that could impact the way that Tennessee courts deal with domestic violence. These changes could affect divorce, order of protection and criminal litigation throughout the State. I have summarized a few below:

HB0541 and SB0124 would transition to the burden of court costs in order of protection matters. Currently, T.C.A. §36-6-617 requires that the costs of any order of protection, whether dismissed or issued, be paid by the respondent to the action. This proposed bill would require that the petitioner pay the respondent's court costs and attorneys' fees should the matter be dismissed.

HB0747 and companion SB0863 seek to extend the time period that an ex parte restraining may remain in effect prior to a hearing. Currently, T.C.A. §36-3-605 requires a hearing to be held on an ex parte order of protection within fifteen (15) days of service. The proposed change would allow twenty-right (28) days to pass prior to that hearing.

HB0826 and SB1922 would allow a domestic violence, sexual assault or stalking victim to terminate their residential lease by giving notice and proof to the landlord.

HB0214 seeks to require those who have violated an order of protection for the first time to attend counseling at their own expense and to pay the victim's counseling (if requested) as well. This bill would also put into place a $3,000.00 fine for any additional violations.

Noncustodial Parent Visitation Rights in Tennessee

March 25, 2011 by The McKellar Law Firm, PLLC

dad and kid.pngOften after parents separate the custodial parent tries to prevent the noncustodial parent from visiting the children. A parent's right to see his or her child is extremely important, and that right is statutorily protected in Tennessee. According to Tennessee Code Annotated §36-6-301, a court must enable continuation of the parent-child relationship by granting a noncustodial parent's request for visitation, unless the court determines that visits with the noncustodial parent would result in emotional or physical harm to the child.

The Code sets out several rights that the noncustodial parent (or the custodial parent when the child is visiting the noncustodial parent) has. These rights extend to all parents unless the court determines that they would not be in the best interest of the child. The statutory rights include:
1. Unimpeded telephone conversations with the child at least twice a week;
2. Ability to send mail to the child without the other parent opening it;
3. Notice of any hospitalization, major illness, or death as soon as possible (but within 24 hours);
4. Access to school records;
5. Access to medical records;
6. No derogatory remarks made about the other parent in the presence of the child;
7. Forty-eight hour notice of, and the opportunity to participate in, all extra-curricular activities;
8. Receipt of an itinerary and emergency numbers from the other parent if the other parent leaves the state with the child for more than two days;
9. Access to and participation in education.

The parent-child relationship is highly regarded, and there must be a compelling reason to interfere with visitation that would foster the relationship between parents and their children. Noncustodial parents have the right to maintain a positive relationship with their children just as custodial parents do. If you are a noncustodial parent being denied court ordered visitation, you could have the custodial parent held in contempt and have the lost visitation time restored.

Reporting Child Abuse in Tennessee

March 17, 2011 by The McKellar Law Firm, PLLC

cryingkid.bmpIn Tennessee, all people are required to report suspicions of child abuse, neglect, or exploitation. You can report child abuse in Tennessee though the Department of Children's Services website, or by calling 1-877-237-0004. Once the abuse is reported, the Department can conduct an investigation and suggest appropriate services for the home to ensure the protection of the child.

Child abuse can be physical, emotional, verbal, or sexual. Often children who are abused exhibit a drastic change in behavior, loss of appetite, or declining performance in school. In addition, the children often have repeated injuries without explanation, exhibit sexual behavior inappropriate for their age, and have trouble sleeping.

Parents who abuse their children often have a history of alcohol or drug abuse, were abused as children, have a disorganized home life, and are isolated from society and have no close friends. While parents are not always the perpetrators of child abuse, 85% of perpetrators of child abuse are parents or relatives, so if you notice parents/relatives of children exhibiting the above behavior, it is important to take notice and recognize that their children could be at risk.

If you suspect that a child is being abused or neglected, you must report it to the appropriate authority. Failing to report child abuse is a violation of the law, and you can be held accountable for failing to report it.

Rehabilitative Alimony is Preferred in Tennessee Divorces

March 16, 2011 by The McKellar Law Firm, PLLC

Alimony is often a contentious issue in Tennessee contested divorces. T.C.A. § 36-5-121(d) addresses all types of alimony awards in Tennessee, including in futuro, transitional, in solido or a combination thereof, but states a preference for rehabilitative alimony over all other forms. The statute suggests that only when rehabilitation is not possible should long-term alimony be awarded by a trial court in a divorce matter. This rehabilitation is supposed to allow the spouse to obtain with reasonable effort an earning capacity that is comparable to the standard of living of the marriage or to the standard of the other spouse post-divorce. The rehabilitative alimony is intended to aid the disadvantaged spouse in becoming self-sufficient by obtaining job abilities, education or training. Kinard v. Kinard, 986 S.W.2d 220, 234 (Tenn.Ct.App.1998).

In a recent Tennessee Court of Appeals case entitled Pettijohn v. Pettijohn, 2011 WL 684268 (Tenn.Ct.App. Feb. 28, 2011), the Wife was awarded alimony in futuro because the trial court determined she could not be rehabilitated and that she needed additional income of $1,750 per month to meet her expenses and maintain her standard of living. This award was upheld in light of the fact that there was a large disparity in income, Wife had health problems, and had "no reasonable expectation of improving her economic conditions." In Riggs v. Riggs, 250 S.W. 3d 453 (Tenn. Ct. App. 2007), the Wife was awarded rehabilitative alimony in light of the fact that she had a real estate license and ran an "upstart" candy business. Because of those two factors, and due to her testimony that the business could succeed, long-term alimony was not appropriate. In Owens v. Owens, 241 S.W.3d 478 (Tenn. Ct. App. 2007), the Wife was awarded $3,000 per month in rehabilitative alimony due to the Wife spending the last twenty-five years as a homemaker and parent while the Husband had an "established career." In Stagner v. Stagner, 2010 WL 3717030 (Tenn.Ct.App. Sept. 23, 2010), the trial court's award of $15,000 of rehabilitative alimony to the Wife for the purpose of allowing her to obtain a master's degree was upheld in light of the fact that Husband had received two post-grad degrees while married, during the time where the Wife was the primary parent for the children due to the Husband's career in the Navy.

These cases show that whenever rehabilitation is available, that should be the appropriate remedy, but when not available, long-term support is a legitimate option regardless of the statutory preference.

Tennessee Fourth in the Nation in Child Abuse Deaths

March 11, 2011 by The McKellar Law Firm, PLLC

cryingbaby.jpgAccording to The Commercial Appeal, Tennessee ranked number four in the nation for the number of child abuse related deaths. Florida ranked number one, followed by Nebraska and New Mexico. Most of these deaths were very small children, usually under the age of 4.

Those responsible for child abuse related deaths usually claim it was stress related, saying the child wouldn't stop crying or was disobedient, and the parent lost his/her temper and struck the child. Factors that may lead to child abuse include alcohol and drug use, teen pregnancy, and mental illness.

According to The National Coalition to End Child Abuse Deaths, approximately 2,500 children die each year as a result of child abuse. The Coalition is composed of prosecutors, child advocates, and social workers who strive to raise awareness of child abuse deaths and increase funding for Child Protective Services workers who investigate child abuse.

With never-ending budget cuts it is harder than ever for the Department of Children's Services and its Child Protective Services division to handle the rising number of children affected by child abuse. However, these departments are crucial in preventing child abuse which too often can lead to the death of a child. In Tennessee, you are required to report suspected child abuse. Without these reports, the Department will have no way of knowing when a child needs protection.

Mediation Required in Most Tennessee Divorces

March 10, 2011 by The McKellar Law Firm, PLLC

The legislature of the state of Tennessee requires most contested divorce cases to participate in mediation according to T.C.A. 36-4-131(a). However, there are some exceptions to this general rule, such as those found in T.C.A. 36-4-131(b): If either party cannot financially afford the cost and expense of hiring a mediator (but the requirement still applies if the mediator's fee is waived or subsidized by the state); if the cost would be an "unreasonable burden" on either party; if the parties have filed a Marital Dissolution Agreement, Agreed Order or Final Judgment addressing all issues; if a settlement conference has been held with the court or special master; if the court believes impasse will result from mediation. The legislature has also carved out additional situations where parties are exempt from mediation. Those can be found in a T.C.A. 36-6-409(4), which allows relief when a court enters a default judgment or finds just cause upon motion of a party, and in T.C.A. 36-4-406, which does not allow mediation to be ordered by the court if any of the following circumstances regarding minor children are found: willful abandonment for long periods of time or refusal to participate in parenting duties; physical, sexual or emotional abuse of the other spouse or the child; if a third party living with a parent has engaged in physical, emotional or sexual abuse; if a parent has been convicted as an adult of a sexual offense; or the court finds that a parent's involvement in the child's life will cause an adverse effect.

In cases where domestic abuse does exist or an order of protection is in effect, a mediation order is only valid if the victim agrees, the mediator is trained in domestic violence and family law and the victim is allowed an attorney or other advocate's presence at the mediation session.

Once mediation begins, parties are always informed that the statements made and records used are privileged and confidential. Disclosure is only allowed if and when the parties agree to such disclosure in writing, if a party goes against a mediator for damages, when documents are also subject to discovery and not prepared just for the mediation alone; when there is a third party lawsuit involving one of the parties to a divorce where fairness requires such disclosure to that third party; or when there is abuse or neglect of a child. Regardless, the mediator cannot be called as a testifying witness.

For more information about the mediation process for Tennessee divorces, see the Mediation Primer.

Grandparent Visitation Rights in Tennessee

child.jpgGrandparents often play a large role in a child's life, and it is a devastating situation when grandparent visitation is denied by the child's parents. Grandparents seeking visitation with their grandchildren can file a petition to establish their right to visitation. If the custodial parent or parents oppose the visitation, a hearing is required if:

1) Either parent of the child is deceased;
2) The child's parents are divorced, separated, or were never married;
3) Either parent of the child has been missing for more than six months;
4) Another state court has granted grandparent visitation;
5) The child has resided with the grandparent for at least 12 months and was removed from the home by either of the child's parents; or
6) The child and grandparent have had a significant relationship for the prior 12 months which was severed by the child's parents for reasons other than abuse or danger of substantial harm, and severance of the grandparent-child relationship is likely to result in severe emotional harm to the child.
Tennessee Code Annotated §36-6-306.

The key to achieving grandparent visitation is establishing that there is a significant existing relationship between the grandparent and the child. A grandparent is deemed to have a significant existing relationship with the child if the grandparent was a full-time caretaker of the child for at least six months, the child resided with the grandparent for at least six months, or the grandparent exercised frequent visitation with the child for at least one year.

Grandparents seeking visitation should understand that they may have a legal right to exercise visitation with their grandchild if they can establish a significant existing relationship with the child, the severance of which would result in severe emotional harm to the child.

Parties to Tennessee Divorce Must Follow Statutory Injunction

Upon the initiation of a contested divorce in Tennessee, one must file and then abide by the provisions of T.C.A. § 36-4-106(d), which is a mandatory injunction "restraining and enjoining both parties from transferring, assigning, borrowing against, concealing or in any way dissipating or disposing, without the consent of the other party or an order of the court, of any marital property. Nothing herein is intended to preclude either of the parties from seeking broader injunctive relief from the court." However, the statute does allow the parties to spend from current income in order to "maintain the marital standard of living" and pay normal operating costs for businesses.

This injunction goes farther, keeping parties from "voluntarily canceling, modifying, terminating, assigning, or allowing to lapse for nonpayment of premiums, any insurance policy..." ; disallowing threats, assault, abuse or derogatory remarks, and restraining parties from "hiding, destroying or spoiling, in whole or in part, any evidence electronically stored or on computer hard drives or other memory storage devices."

When minor children are involved, neither parent may relocate with the children outside the state or move 100 miles away from the marital home unless there is "well-founded" fear of abuse (in which case the court will schedule an emergency hearing).
Abiding by these provisions is very important for divorcing parties in Tennessee. If a party violates these orders, not only do they lose credibility and trustworthiness with the court, but they will be required to make up for any losses or expenditures.

In the case of Davis v. Goodwin, 2010 WL 5449844 (Tenn. Ct. App. Dec. 23, 2010), the Wife added a home equity line of credit to the marital residence, which was deemed a violation of the injunction. The court in that case held her in civil contempt and ordered her to pay the entire balance of the credit line. In Barnett v. Barnett, 2010 WL 680983 (Tenn. Ct. App. Feb. 26, 2010), the Husband sold assets from his business and a parcel of real property, which the court held was a violation. In Hopkins v. Hopkins, 2002 WL 31387297 (Tenn. Ct. App. Oct. 23, 2002), the Wife sold a horse belonging to both parties and gave the proceeds of the sale to her daughter. The court held that the Husband was allowed a credit toward his alimony obligation for one half of the amount of the proceeds.

While going through a divorce, spouses must ensure that they abide by provisions of the injunction. If necessary, parties may file motions with the court asking for permission to engage in one of the forbidden actions. The court may grant such an allowance, if a good reason is shown.