Tennessee Divorce Lawyer Blog

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.

10 Things to Ask Before You Hire a Tennessee Divorce Attorney

1. Which areas of law do you practice?

In my experience as a Nashville divorce attorney, the best divorce lawyers practice only family law. This is not to say there aren't great lawyers out there who consider themselves a "jack of all trades." However, if you want a divorce attorney who is up-to-date on the new cases and laws you should hire an attorney who specializes only in divorce and family law.

2. Is your retainer refundable or non-refundable?

A refundable retainer is one that is paid into a lawyer's trust account and if the lawyer does not use all of the funds, he or she is obligated to return those funds to you once your case is resolved.

3. What do I need to know about the Judge?

See question and answer 1. An experienced divorce and family lawyer will know the Judge or list of Judges before whom you will appear. Judges are human and therefore have preferences and dislikes. Your attorney should be able to advise you about the particulars of your Judge and what he or she prefers and his or her tendencies. This will help you prepare for testifying in court and also help you to resolve your case in mediation.

4. What is your return call policy?

If I've heard it once I've heard it a thousand times, "I hired an attorney and they won't return my phone calls until weeks later, if at all. I usually only get to speak with the attorney's paralegal." If prompt return phone calls are important to you, and they probably are, ask the attorney what his or her policy is. Every experienced and respected attorney should have a policy and should be upfront with you about those policies.

5. What is your hourly rate?

You should find this rate in the client/attorney contract you sign upon hiring your attorney. Before you sign, make sure you are familiar with the attorney's hourly rate and the rate for a paralegal. Attorney's who charge a lower retainer fee may charge a higher hourly rate. Make sure you know before you sign.

6. Do you attend mediation with your clients?

Every contested divorce in Tennessee is required to be mediated by a neutral third party. Some attorney's do not attend mediations. As I believe it is important to have your attorney with you at all steps in the process, make sure you know your attorney's policy. Generally, if you request the attorney to be present he or she will do so.

7. What is the final cost of a divorce case that goes to trial?

Although this is a moving target in every case, your lawyer should be able to give you a range of possible final costs. If cost is an issue, you need to have a serious discussion with your attorney as to whether your case could end up costing you $30,000. Your attorney should be open and honest with you and should give you a range and, if they can't, find an attorney who can.

8. Has the attorney ever been reprimanded by the Board of Professional Responsibility?

This is a serious issue and you should do your homework before you hire an attorney. I would refrain from asking your attorney directly and instead do an online search on the Tennessee Board of Professional Responsibility. Make sure you read the facts of the reprimand and ask yourself if you are comfortable hiring this attorney. These reprimands are public knowledge and attorneys and judges alike are familiar with attorneys who have been reprimanded. Make sure you are spending your money on an attorney with integrity.

9. Will you meet with me before court hearings and trial?

Inquire as to whether your attorney plans on meeting with you and how often. Your attorney should have a general policy to meet with the client prior to any hearing in which your testimony will be given. Preparation for testifying can make all the difference in the world and if your attorney does not have the time to prepare you, hire an attorney who does.

10. After your initial consult, what is your gut feeling about that attorney?

Intuition is everything. Stick with your gut feeling and interview several attorneys before making your decision. You should be able to be open and honest with your attorney and trust them to work hard for you and your objectives. If your gut tells you to move on, then keep interviewing attorneys until you find the right fit for you.

Whether you are a parent, relative or family friend of a child who has been removed from the parents' home by the Tennessee Department, you know what a difficult situation this can often be. It is very difficult for parents and family members to navigate the system when the Department is involved a case. This is due to the fact that the Department has its own set of rules and regulations that are often difficult for parties and family law attorneys to understand and apply. The following is a list of considerations to make if you are a family member or friend of a child that has been removed from his or her home by the Department:

1. Contact an attorney with juvenile court experience. Time is of the essence in juvenile cases involving dependency and neglect and it is very important that you know your rights as soon as you are contacted by the Department or, as soon as the child is removed.

2. If you are a relative seeking custody, seek advice from an attorney immediately. Once a child is removed from the parent's home, the Department is required to inquire about family members taking custody of the child. If you are a relative and are seeking to have the child placed in your home, you need to know your rights and obligations. Although the Department may advise that you do not need counsel, this is not so.

3. Just because the Department says they will consider you as a placement does not mean the child will be placed with you or other relatives. Although the Department may agree to consider you as a placement home for the child, this does not mean that they must place the child with you even if you complete their background check and intake successfully. The Department may simply deny you placement for any reason so it is important that you discuss your options with outside counsel.

4. You are never required to submit to a drug screen or to talk to the
Department. Although the Department has the right to take action if you do not submit to their tests or inquiries, you should first seek the advice of counsel before submitting to any tests or interviews.

5. Just because a parent wants the child to be placed with a family member does not necessarily ensure that the child will not be placed with strangers in foster care.

If you are a parent, relative or family friend of a child that has been removed from a Tennessee home due to dependency and neglect or, you have been contacted by the Department please call our firm so we may advise you of your rights. It is imperative that you are properly informed of your rights in cases involving the Department so that you can have your child returned to you swiftly or so that you may become a placement home instead of the child being placed with a foster home.