Tennessee Divorce Lawyer Blog

Last month, we posted about a recent Tennessee Court of Appeals decision regarding grandparents' rights. We explained that the Tennessee grandparent visitation statute does not address the standard of proof for a grandparent or parent to modify an order of visitation. In Lovelace v. Copley, the Tennessee Court of Appeals established that standard, determining that in order to modify an order of grandparent visitation, there is a heightened standard, requiring the grandparents to prove there has been substantial harm to the child or that substantial harm will occur if the visitation is not modified.

We now want to give you the most recent update on Lovelace. The Tennessee Supreme Court has decided to review the Court of Appeals decision. The appellant's brief is due on September 4, 2012, so a decision is this case is still months away. Be sure to check back for the most up-to-date information on this important case.

Do you have questions about your rights as a grandparent? Contact The Parker Firm, PLLC at (615) 353-0930 for a free consultation.

Going through a divorce is a difficult process - financially and emotionally. Many clients can't wait for the day their divorce will be final so that they can move on with their lives. Some spouses even look forward to dating other people, and they wonder whether it is acceptable to begin dating while their divorce is pending.

The answer is that it is never a good idea to begin dating before your divorce is final. In fact, you should not date someone else, even if your spouse has begun dating others. Even if you and your spouse have already separated, dating while your divorce is pending has the potential to lengthen the process and cause you more stress.

Just the presence of a new boyfriend or girlfriend can anger your spouse, and they may suspect that your new relationship began before your separation. Your spouse's attorney could depose your new boyfriend or girlfriend, asking them about when your relationship began, whether you have purchased any gifts for them, whether the two of you have gone on vacation together, and whether the person has been taken around your children.

Remember also that, when you have children, your marriage might be ended by divorce, but you will always have a relationship with the other parent of your child. Having an affair cannot possibly improve your post-divorce communication or willingness to cooperate with each other.

Continue reading "Can I Date While My Divorce Is Pending? " »

Summer is here, and prime moving season is upon us. We have had several phone calls over the past few weeks about whether a non-married parent may move, despite the other parent's objection. The answer is... usually, yes.

A parent may move anywhere, even out of state, so long as he or she gives the other parent written notice of his or her intent to relocate. The Tennessee statute T.C.A. § 36-6-108 governs the notice of relocation requirement for non-married parents:

If a parent who is spending intervals of time with a child desires to relocate outside the state or more than one hundred (100) miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent's last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days prior to the move. The notice shall contain the following:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that the other parent may file a petition in opposition to the move within thirty (30) days of receipt of the notice.

If the parent does not comply with these requirements, then the court could prohibit him or her from leaving the state with the child, order the parent to move back, or even (in extreme circumstances) take primary custody away from that parent. The court could also order the parent to pay the other parent's attorney fees.

Continue reading "Can My Child's Other Parent Move Without My Permission?" »

When Grandparents have already been granted visitation with their grandchildren, what needs to be done by the grandparents or parents to modify that visitation schedule? The Tennessee Court of Appeals (at Nashville) recently established the burden of proof to modify these orders in Lovelace v. Copley (No. M2011-00170-COA-R3-CV).

The court began by noting that parental rights are superior to those of others, and parental rights should not be interrupted unless the parent agrees to relinquish those rights, abandons a child, or forfeits their parental rights by engaging in conduct that harms the child. The superior nature of parental rights is exactly why Grandparent rights are limited in Tennessee.

The Tennessee grandparent visitation statute does not address what the standard of proof is for a grandparent or parent to modify an order of visitation. The court, in Lovelace, has established that standard: To modify an order of grandparent visitation, there is a heightened standard, which requires the grandparents to prove there has been substantial harm to the child or that substantial harm will occur if the visitation is not modified.

Continue reading "How to Modify an Order of Grandparent Visitation" »

As a parent, one of the most important decisions you can make for your child is what religious or spiritual activities you will participate in as a family. When parents divorce, there is often disagreement as to which parent gets to decide where and how the child will worship. Take for example a recent case in Knoxville, Tennessee. The divorced mother of a 12-year-old boy made the decision to let her son be baptized at a Baptist church. She was later thrown in jail for that decision.

To truly understand this story, you must rewind back to 2010, when the parents were divorced. Like all divorcing parents in Tennessee, the father and the mother entered into a parenting plan. Like most parenting plans in Tennessee, this one required that all religious decisions be made jointly by both parents.

Now back to 2012. Their 12-year-old son decided that he wanted to be baptized. The mother met with the youth pastor to make sure that her son was making an informed decision. The son told his father about the baptism, and the mother reminded the father about it the night before the ceremony. The father encouraged the mother to delay the ceremony so that they could discuss it together. The son called and talked to the father the same evening, and the father attended the ceremony the following morning.

The father proceeded to file a criminal contempt petition against the mother for violating their parenting plan. The judge sent the mother to jail for failing to allow the father to provide his input about the baptism. She spent over 24 hours in jail before the parties reached an agreement and she was freed on bond.

Continue reading "Mother Jailed for Allowing Son to Be Baptized" »

Divorcing couples have been increasingly using technology, such as computer spyware and Facebook/Twitter, to "keep track" of their spouses during a divorce. With the ease and availability of technology today, divorcing couples are turning to different ways of monitoring their spouse or their spouse's online activities and conversations. To make matters worse, more and more individuals are willingly putting information on social networking sites that could potentially be used in a divorce proceeding. Technology is outpacing the legal field's ability to adapt laws that address these issues.

With so much information being exchanged through cell phones, e-mail, Facebook, Twitter and other social media websites, spyware has become increasingly useful for spouses who wish to know whether their husband or wife is having an affair. It has also been used to discover undisclosed assets or other types of misconduct during a divorce. Davidson County Circuit Court Judge Phillip E. Smith has stated that courts are going to struggle with deciding when to allow this type of evidence going forward.

As these types of e-mails and other online communications and activities are introduced in court, judges will have to sort out nuances in the law. "For example, how much of a shared computer can litigants access? What if one party knew another's email password before divorce proceedings began? And what are the repercussions for breaking those rules?"

Continue reading "Computer Spyware, Facebook and Your Divorce" »

When a child is adjudicated dependent and neglected, the juvenile courts of this state have exclusive jurisdiction over these cases. TENN. CODE ANN. § 37-1-103(a)(1)(2011). However, any party to such an action has the right to a de novo appeal to the circuit court. This is significantly different than most juvenile court cases because generally rulings are reviewable only by the appellate courts of Tennessee. TENN. R. JUV. P. 36. Moreover, this appellate process is significant because it gives parties a second bite at the apple, including time to change the circumstances that led to the child being found dependent and neglected.

For example, many people file dependent and neglect actions to protect children who are living in homes where drugs are being consumed or sold. Thus, the parent or guardian is creating a situation in which it is no longer safe for the child to remain in that home. Once the child is removed from that home, the juvenile courts often focus on rehabilitating the parents in order to try and reunify the family.

However, if (1) the parents or caregivers have shown an unwillingness to rehabilitate themselves or to remedy the problem that led to the initial removal or (2) the conditions that led to the removal are so egregious that reunification is not an option, the juvenile court has wide discretion in where to place the child at what is known as the dispositional hearing.

Once the Juvenile Court has made a dispositional ruling as to the placement of the child, either party may appeal the dependent and neglect case to the circuit court. Then, the circuit court tries the case with no presumption of correctness and decides whether the child is dependent and neglected and the appropriate disposition. This buys parents time to remedy the reasons the child was removed.

Continue reading "Juvenile Dependency and Neglect Cases" »

In State of Tennessee, ex rel, Price v. Childers (January 5, 2012, No. E2011-00457-COA-JV), the state of Tennessee brought a suit to establish the Defendant as the father of a child and to require the Defendant to pay child support. The Defendant did not participate in these proceedings because he was a member of the U.S. Military, and he was deployed at the time. The court entered a default judgment, finding that the Defendant was the father of the child in question.

When the Defendant later requested a DNA test, the court found that he was not the father, and the court then ordered that the State of Tennessee to reimburse the Defendant for child support payments that had been taken from his check. The juvenile court magistrate and judge based this decision on the fact that the State did not comply with the Servicemembers Civil Relief Act, and that the original judgment was, therefore, void ab initio. Because the juvenile court found the judgment to be void, the court ruled that the State improperly took the Defendant's money. However, the Court of Appeals found that the juvenile court did not have jurisdiction to order the State to reimburse the Defendant for those child support payments.

Military parents should know that the Servicemembers Civil Relief Act will temporarily suspend judicial proceedings that could have an adverse affect on the civil rights of an individual during their military service. The act covers any child custody proceeding when a defendant, who is in the military, does not make an appearance. In these situations, a military parent may be entitled to have an attorney appointed for the case. If a court enters a default judgment against a deployed parent, the court must, upon application by the parent, re-open the judgment to allow the parent to defend the action if: 1) the parent was materially affected because of his or her military service in making a defense to the action and 2) the parent has a meritorious or legal defense to the action or some part of the action.

Because the state, in this case, did not comply with the Servicemembers Civil Relief Act, the alleged father did not receive an appointed attorney to represent him. Therefore, the trial court erred when it entered the default judgment. The reason the State did not have to refund the money is because the Court of Appeals ruled that there was no violation of due process, even though the judgment was entered in violation of the Servicemembers Civil Relief Act. This is because the original judgment was voidable, but not automatically void. That means the order was valid when the child support was garnished, and it remained a valid court order until it was challenged by the Defendant.

If you would like to know whether a case can be put on hold while you serve in the military, or to see whether you can re-open a case that was heard while you were deployed, contact The Parker Firm today!

Oftentimes, clients get caught in a trap of tit-for-tat. The number one rule for divorce game playing is to not get sucked in. Do not let your spouse encourage you to engage in behavior that you would otherwise avoid. Do not worry about who is right. Worry about what is right. Regardless of how your spouse acts during the divorce, always do the right thing. Always take the high road. Never act in a way that would embarrass you if it were to be made public. You will never regret being the bigger person.

Do not be too sensitive or thin-skinned. Clients are often upset by things that are in pleadings or things that the other party requests. These concerns are usually unwarranted. Before getting angry or upset about something that is in court documents, talk with your attorney to find out if it's standard language or if it's normal practice in family law.

Regardless of how you feel about your soon-to-be ex-spouse, remember that he or she is the parent of your child. Even if you believe he or she is a bad person, also remember that it never benefits your child to have feuding parents. Never talk bad about the other parent in front of your child. Never argue in front of your child. Never discuss the case in front of your child.

Both parents have an absolute right to children's school records (report cards, attendance records, teachers' names, schedules and test scores. Both parents have an absolute right to participate in children's extracurricular activities and school events. Both parents have an absolute right to children's medical records.

One factor courts consider, when determining who will be the primary residential parent, is which person is most likely to encourage a relationship between the other parent and the child or children. Never, never, never interfere with your child's relationship with the other parent. Always encourage your child to have regular contact with the other parent, whether it's through visitation or through phone calls.

Child support in Tennessee is affected by several things: the number of days each parent spends with the child, the number of children, the respective incomes of the parents, which parent carries health insurance for the children, and which parent covers daycare expenses for the children. It can also be affected when one parent has a child support obligation for another child.

Every parent has a right to at least two phone conversations per week with their children, without the other parent disturbing those talks.

Every parent also has a right to at least 48 hours' notice of all extra-curricular activities.

If either parent leaves the state for more than 2 days with the children for vacation, the other parent has a right to notice and an itinerary, including emergency phone numbers.

Fathers should know that, while they have historically been granted parenting time during every other weekend, courts are increasingly giving fathers equal parenting time. There is no longer any gender preference for who will be the primary residential parent, and the Tennessee legislature recently began requiring that each parent receive maximum participation with their children, so far as it is in the best interests of the children.

A recent Tennessee case, In re Annia J., illustrates how hard it can be to change a custody arrangement. If you want to change custody of your child, this is the number one thing you have to know: there must have been a material change that has taken place after the current plan was put in place and the parent wishing to change custody must show that these changes affect the child in a negative way.

By no means is it impossible to change custody, but you must present the right evidence to convince a judge that there have been substantial, material changes that are affecting the child. Read the analysis of this recent case for an example of what proof is needed. If you believe you may have grounds for changing custody, contact our office today to set up a consultation and to discuss your case.

In this case, the Father brought an action to change custody of the minor child, requesting that he be made the primary residential parent. The juvenile court judge found a substantial and material change of circumstances and made the Father the primary residential parent. The Court of Appeals reversed, finding that there was not enough evidence to establish a material change had occurred or that these alleged changes negatively affected the child.

Continue reading "Case Law Review - Analysis of In re Annia J.: Setting You Up for a Successful Change of Custody" »

Many grandparents call us because they want to have visitation with their grandchildren, but they are worried that they have no rights under Tennessee law. Often, we meet loving, caring grandparents that are not allowed to visit or talk with their grandchildren because the children's parents cut off all contact. Fortunately, Tennessee does grant some rights to grandparents that meet statutory requirements.

Tennessee Code Annotated § 36-6-306 establishes some grandparent visitation rights. When the following circumstances exist, the court must grant a hearing to determine whether a visitation schedule should be established:

• The parent that is the biological child of the grandparent is deceased;
• The child's parents are divorced, legally separated or were never married;
• The parent that is the biological child of the grandparent has been missing for at least six months;
• A court in another state has granted the grandparent visitation;
• The grandchild lived in the grandparent's home for one year or more; or
• The child and the grandparent had a significant relationship for at least one year before the relationship was severed (as long as the reason for severing the relationship was not related to abuse or a danger to the child).

Continue reading "In Tennessee, Grandparents Have Rights Too" »

In a word, no. We see it all the time. A father walks into our office and tells us he's been talking with a child support office, asking for a modification of his monthly child support obligation, and his request was denied. One father, in particular, had repeatedly gone to a child support office, filled out papers, talked to workers, provided proof that his income had been reduced and asked that they modify his obligation. Not only did the Child Support Office deny his request, but they also used the information he provided to have the father thrown in jail for not paying his court-ordered child support via a criminal contempt petition.

Adding insult to injury was the reason the Child Support Office said his modification was denied: The office couldn't get the mother to provide her updated financial information. The danger in this is that the parent receiving child support payments can control whether the paying parent is able to receive a modification, without any incentive to help the paying parent reduce their obligation.

When seeking to modify a child support obligation, it's important to remember that the child support offices and their workers are not an advocate for you. They are not in the business of helping the payor spouse get payments reduced. If you seek a reduction of your child support obligation, you may, like several of our clients, simply be tipping the office off that you're in violation of a court order for failure to pay your child support. Therefore, the best course of action in these situations is for the parent to find an attorney who can file a petition with the court to have child support modified.

Continue reading "Should You Talk with the Child Support Office to Seek a Modification?" »

One of the toughest decisions a family law judge must make is which parent will be the Primary Residential Parent, and Governor Haslam recently signed a bill into law that changes how judges create these parenting schedules in Tennessee. The bill requires judges to order parenting plans that allow both parents to exercise "maximum participation" in their children's lives, consistent with where the parents' live, the child's need for stability, and other statutory factors, including:

• The love, affection and emotional ties between each parent and the child
• The disposition of each parent to provide for the child's needs
• The degree to which one parent has been the primary caregiver
• The importance of continuity in the child's life
• Stability of each parent's family unit
• Health of each parent
• Home, school and community involvement of the child
• The reasonable preferences of children over 12 years old
• Evidence of child abuse, abuse to the other parent or to any other person
• Character and behavior of anyone residing with a parent or who frequents a parent's home
• The parents' past and potential future performance of parenting responsibilities

The new law will only apply to future custody disputes. Parents who are already operating under a court ordered parenting plan are still governed by the old law, but there is one exception. To modify an existing plan, the parent seeking modification must still show a significant change in circumstances to alter the visitation and custody schedule. However, once a court finds that modification is appropriate, the modification would be ordered according to this new law.

This legislation has brought about a lot of discussion and disagreement in the legal community over what impact it will have on future parenting plans. The new "maximum participation" language certainly indicates a legislative intent to have both parents as involved as possible, so long as that involvement is in the child's best interest. In fact, Tennessee State Senator Andy Berke, the sponsor of this bill, explained that his goal was to meet the changing needs of families. Senator Berke recognizes that fathers often spend as much or more time with their kids than the mothers do, something he attributes to the changing structure of families and changes in how society views parenting responsibilities.

Continue reading "Tennessee Lawmakers Change How Courts Determine Custody" »

On July 1, 2011, a new statute went into effect, changing how Tennessee deals with Orders of Protection. Orders of Protection are demands by the court that a defendant not abuse or threaten the plaintiff. These Orders also tell the defendant not to damage the plaintiff's belongings or pets. Only certain people can seek an Order of Protection, including:

• Current or former spouses;


• Individuals who cohabitate or who formerly cohabitated;


• People who are dating or previously dated;


• Individuals who have or used to have a sexual relationship;


• Those related by blood or adoption;


• Those who are related or who were formerly related by marriage;


• Or the children of any individual mentioned above.

Previously, when a purported victim sought an Order of Protection, the courts required the accused to pay all costs associated with the process, even if no Order of Protection was ultimately granted. Fines could never be assessed against the victim, which encouraged some frivolous claims since the person seeking protection had nothing to lose.

Recently, however, the state legislature addressed this potential abuse by passing a law that places the financial burden on the petitioner (the one seeking the Order of Protection) if the Order is not granted. Before making the petitioner pay court costs, the court must find 3 things. First, the court must find that the petitioner was not a victim of domestic violence, stalking or sexual assault. Secondly, the court must find that the Order was denied because the petitioner was not a victim. Finally, the court must find that the petitioner knew the claims were false when the petition was filed. Once a court finds those three things to be true, the Petitioner can be required to pay all court costs associated with seeking the Order.

In domestic situations, where relationships are at stake and emotions are high, this legislation will balance the need to protect victims of domestic abuse against the need to deter false or vindictive claims of abuse. Those who are genuinely concerned about their safety or the safety of their children can still seek an Order of Protection without incurring any cost so long as they do not make claims they know to be false. However, with this law, the legislature has recognized that Orders of Protection have a serious impact on the lives of those accused of abuse. Therefore, petitioners who seek these orders should be sure their claims are well-founded.

Continue reading "Orders of Protection in Tennessee Recently Got a Makeover " »

One of the most underestimated tools used in divorce and custody is client research and preparedness. Believe me when I say your attorney can only do so much. I came to realize the importance of this tool from Mr. S. I met Mr. S. more than 2 years ago when he came to me seeking a divorce and custody of his then 2-year-old son.

As I often do with my clients, I provided Mr. S. with a list of the statutory factors Tennessee Courts must rely on in deciding custody. Although these factors are an excellent starting point for a client, they leave much to be desired in terms of specificity. The real trick to these custody factors is learning how to apply them to your case and your child as opposed to viewing them in general terms. A client's job should be to determine his or her own strengths and weaknesses as it relates to each factor, the other parent's strengths and weaknesses as it relates to each factor and how the factors apply to day-to-day living.

As a client involved in a domestic case, there are many things you can do to improve your chances of being successful in court. The greatest resource a client has is the internet. Now, let me also suggest that content on the internet can be vast, overwhelming and often misleading. However, the positives certainly outweigh the negatives. I recommend my clients spend several hours a week on the internet researching Tennessee law on his or her specific issue. You will often find many websites devoted to your specific issues. Mr. S. was a whiz at using this tool and once he completed his research he called me with questions. This allowed him to be more learned on specific issues that were important to him, and it made our time together more valuable.

Secondly, think through the day-to-day application of what you are asking the court to award you. For example, I cannot tell you the number of times a parent has walked into my office and stated that she and the father had agreed to equal parenting time. Sounds great huh? Yes, until I determine that one parent lives in Davidson County and the other in Rutherford County. The parents obviously had good intentions but never thought about the effects of driving a child up and down I-24 for school everyday. When Mr. S. brought me his proposed parenting plan, he had meticulously thought through each decision and how it would effect the child and both parents. Also, when I questioned him about his plan in open court his thoughtfulness clearly resignated with the judge.

It is up to you to provide your attorney with the facts of the case. One of the easiest and most helpful ways you can do this is by keeping a journal. Unfortunately, dates and times become important in court. Your journal should include any facts you believe to be relevant to your case. Importantly, you should always journal payments of child support, days of visitation and/or missed visitation and conversation with the other party. Your first inclination maybe to call your attorney right after an argument with your spouse but, I can assure you, your time and the attorney's time is better spent if you journal the facts instead. This creates a better record down the road.

Finally, just be prepared and do your homework. The most successful outcomes in family court are often in great part due to the work of the client. Just because you have hired an attorney to represent you does not mean your off the hook. Ask your attorney to provide you with an outline of what factors the judge will use to make her ultimate decision. Find out what the law is with regards to your issue. Make a list of questions for your attorney. Start gathering facts and witnesses from day one. The most prepared clients are the most successful clients in court and as much as I would like to take credit for the outcome of Mr. S.'s case, I can honestly say that he taught me the importance of client preparedness.