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Posted by: koherston | May 23, 2013

Selling the Marital Residence During a Divorce

This recent article by Elizabeth Harris in the New York Times about selling the marital residence during a divorce may be of interest to readers of this blog.

After the Breakup, They Help Sell the House

Lucky are the few who move out of their houses simply because they have tired of the view or suddenly possess the means to trade up. More often, it is a change in life circumstances that pushes people out into the housing market, something like a new job, a new husband or a new baby.

East Tennessee divorce attorneys And lurking with quiet devastation behind many “for sale” signs is the big, sad shift that almost always requires that somebody move out: divorce.

For real estate agents and brokers, deals that spring from divorce are an inevitable slice of the business, and over the years, many find themselves gathering answers to questions they hoped never to ask.

How does one represent two people who won’t speak to each other? How does an agent show an apartment that has been divided by awkwardly placed locks or temporary walls? And what if your client’s highest priority is making sure their former partner does not come out ahead?

For most agents, this is an accidental expertise. For others, it is a niche.

“We specialize in it,” said Vicki Stout, an agent at Keller Williams Suburban Realty in Livingston, N.J., who proclaims herself to be a “divorce specialist.”

“But it is hard to advertise,” added Bob Bailey-Lemansky, her business partner. “No one is going to go to our Facebook page and ‘like’ divorce.”

It was about three years ago that Ms. Stout, a widow and single mother, and Mr. Bailey-Lemansky, who is divorced, created New Jersey Real Estate Divorce Specialists. Today deals stemming from breakups tend to make up about half of their business. They have a few useful tips for their clients (how both halves of a divorcing couple can maximize tax breaks on capital gains when selling a home, for example) but most of what they offer is more basic.

They have found that having one man and one woman on the sales team can make acrimonious couples more comfortable, they say. They have grown accustomed to having every conversation at least twice. And perhaps most crucially, they said, they are inured to the difficulties that can arise when clients’ claws are out.

“We’re familiar with how to handle clients that have restraining orders,” Ms. Stout offered matter-of-factly.

Just a few months into their partnership, however, they discovered that business cards loudly proclaiming “Divorce!” were not always a banner their customers were eager to fly. The pair changed the name of their partnership to Family Focus Realty.

In fact, keeping the word quiet is often a priority, many brokers say. Most often, when buyers hear “divorce,” their first thought is “fire sale.”

“I don’t discuss it because it opens up the seller to getting killed,” said Frances Katzen, a managing director at Douglas Elliman. “Buyers think they must be desperate.”

Optics are important, Ms. Katzen continued, and if a closet looks bare on one side, she will gently rearrange what’s available to make the absence less apparent. But Michael Shapot, a senior vice president at Keller Williams Realty in New York City, whose biography calls him a “certified real estate divorce specialist,” likes to go a step further.

“If there are no men’s clothes in there, go buy some,” Mr. Shapot said. “Ask a friend, or find some off-season clothing you can store there. There are things you can do.”

Mr. Shapot’s divorce certification comes from a company in Colorado called the Financial Divorce Association, which offers roughly four hours of tax and legal seminars on DVDs for about $600. Ms. Stout and Mr. Bailey-Lemansky have taken the course as well.

Sometimes an agent’s most difficult task is not keeping the divorce under wraps, but navigating between the two clients who are in the middle of it.

Mr. Shapot recalled situations where apartments were left covered in laundry and dirty dishes because the partner still living there was not eager to sell. Ms. Katzen said a client of hers in similar circumstances left the bathroom filthy and the apartment reeking of smoke for its first showing.

Elayne Reimer, an executive vice president at Halstead Property and a former marriage and family therapist, said she had clients a few years ago whose impending divorce required jumping through extra hoops not just for her but for buyers, too.

“I had to meet the husband in the lobby and then he escorted me to his section of the apartment,” Ms. Reimer explained in an e-mail. “I had to then meet his wife elsewhere and wait for her to escort me to her section, which was locked from him.”

A similar dance was performed each time she took buyers to see the apartment, first one section, then, at a later date, the other.

All this, of course, raises the question: Doesn’t it get depressing?

“I mean, it’s not inspiring, I will say that,” said Victoria Vinokur, an executive vice president at Halstead Property.

“I think it’s very important to remember that these people are not trying to be difficult on purpose,” Ms. Vinokur continued. “This is just one aspect of a big picture they’re dealing with. They may have other money, maybe other properties. What if they have children?”

Even in difficult circumstances, however, homes do eventually sell, at which point the parting couple gathers up the pieces to look for separate places to live, and real estate agents are called in again.

Ms. Katzen of Douglas Elliman has a pair of divorcing clients right now who are buying two apartments on different sides of the same building, she said, because they hope it will make the separation easier on their child.

“It’s quite selfless, really,” Ms. Katzen said. “Some people would say, ‘Forget you! If I’m going out on a date, I do not want to run into you in the lobby.’ Talk about putting the child first.”

Source: After the Breakup, They Help Sell the House (New York Times, April 1, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Divorce, Property Division, Property Valuation | Tags: Divorce, Family law, Knoxville Tennessee, Real estate, Tennessee

Posted by: koherston | May 20, 2013

Adult Child Can Recover Retroactive Child Support in Tennessee Paternity Lawsuit: Danelz v. Gayden

Knoxville Child Support Lawyers Facts: During 1983, Mother was married to Husband, and at the same time had an intimate relationship with Father. In 1984, Mother gave birth to Child. Apparently, Husband was unaware of Mother’s relationship with Father. Husband signed Child’s birth certificate and raised Child as his son.

Later, Mother and Husband eventually divorced and entered into a marital dissolution agreement that designated Mother as Child’s primary residential parent. Husband was ordered to pay child support for the benefit of Child.

Within months after Child turned 18, he filed a parentage action to establish that Father is his biological father. Child’s parentage petition sought a retroactive award of child support dating back to his birth, as well as an award of attorney’s fees.

A court-ordered DNA test confirmed that Father is Child’s biological parent.

The trial court found that Mother was judicially estopped from making a statement that was contrary to the sworn pleadings she filed in her divorce action, in which she asserted that Child was the child of her marriage to Husband. The trial court commented that the actions of Mother deprived both Child and Father of the opportunity to have a relationship during Child’s childhood.

The trial court observed that Tennessee Code Annotated § 36-2-311 specifically references the child support statutes, including § 36-5-101, which provides for the payment of child support to the spouse or other person with custody of the child at issue. The trial court drew a negative inference from the fact that these statutes have no express provision for the payment of child support to an adult child, and on that basis concluded that there was no authority for the court to make such an award. Thus, the trial court concluded that Tennessee law did not expressly authorize it to make an award of retroactive child support to an adult child.

Child appealed.

On Appeal: The Court of Appeals reversed the trial court.

Child argued that, once paternity has been established, the pertinent provision of the paternity statutes, Tennessee Code Annotated § 36-2-311(a)(11)(A), requires the trial court to make a determination of child support. He stressed that the purpose of the paternity statute is to require a biological father to support his child and that — as an adult child — he is entitled to that relief.

Father argued that Tennessee Code Annotated § 36-5-101(c)(2)(A), which states that the “order or decree of the court may provide that the payments for the support of such child . . . shall be paid either to the clerk of the court or directly to the spouse, or other person awarded the custody of the child. . . .” Father contended that Child does not have a personal right to child support, arguing that the right to receive child support payments vests in the custodial parent once due. Father also argued that Child is not legally entitled to receive child support because the costs associated with raising him were borne by Mother and Husband, not by Child.

Tennessee Code Annotated § 36-2-311(a) provides:

(1) A complaint to establish parentage of a child may be filed by:

(A) The child, if the child has reached the age of majority. . . .

The parentage statutes specify that an adult child must bring the parentage action within the statutory time deadlines. Once parentage is established by genetic testing, the statutes set forth certain actions to be taken by the trial court:

Upon establishing parentage, the court shall make an order declaring the father of the child. This order shall include . . . a determination of child support.

Section 36-2-311(a)(11) details the considerations for the trial court in making an award of retroactive child support and sets forth reasons for which the trial court may deviate from the child support guidelines. In addition, it directs the trial court to consider an award of attorney’s fees to either or both parties.

The Court reasoned:

[T]he object of the parentage statutes is not only to give the complainant the knowledge of the true parentage of the child at issue, but also to provide concrete relief that reflects the responsibility concomitant with being a biological parent. Section 36-2-311 sets forth that relief, using language that indicates that Tennessee’s legislature intended the relief to be mandatory once parentage is established….

When the legislature has enacted more than one statute relating to the same subject or sharing a common purpose, the statutes “shall be construed together (‘in pari materia’) in order to advance their common purpose or intent.” Thus, we must attempt to construe the general child support statutes, setting forth how and to whom child support is to be paid, along with the mandate in the parentage statutes that child support be included in the trial court’s parentage order, in a manner that advances the common purpose of both statutes…. In doing so, we decline to draw the negative inference drawn by the trial court below, and instead find that the lack of any provision in the child support statutes for payment of child support to an adult child does not nullify the child support mandate in the parentage statutes. In interpreting the parentage statutes, we are required to enforce the legislature’s clear mandate. When the legislature included in the parentage statutes a specific provision allowing an adult child to bring a parentage action, it gave no indication that the relief to be awarded to an adult child would be any different from the relief awarded to any other complainant. The legislature did not choose to carve out an exception in the parentage statutes for an adult child complainant, and we decline to read one into the statutes….

The parentage statutes state that the trial court may consider a deviation from the amount of the child support award as calculated under the child support guidelines based on the extent to which the father did not know, and could not have known, of the child; the mother’s intentional failure or refusal to notify the father of the child; and the mother’s attempts to notify the father of her pregnancy or the child….

Tennessee’s parentage statute requires the trial court to make any findings on deviation from the child support guidelines based on “the best interests of the child or the equity between the parties,” so the fact that the complainant is the adult child rather than the mother may significantly affect the trial court’s weighing of the equity between the parties.

Thus, the Court held that an adult child may recover retroactive child support pursuant to Tennessee’s parentage statutes. The trial court was reversed.

K.O.’s Comment: Compare this case with Lichtenwalter v. Lichtenwalter, where the Tennessee Supreme Court said ”[c]hild support payments are typically paid to the custodial parent despite the fact that child support payments are intended for the benefit of the child.” The Supreme Court noted the child support statute “does not change the party to whom the unpaid amount must be paid based upon the current age of the children for whom the amount were due.” The Supreme Court then held that the right of recovery for the arrearage “is a vested right that lies with the parent to whom the child support is due.” The Court of Appeals distinguished Lichtenwalter because it was not a paternity action. Reading the two cases together, it would appear that an adult child’s right to recover retroactive child support is limited to actions to establish paternity.

Danelz v. Gayden (Tennessee Court of Appeals, Western Section, March 25, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Attorney's Fees, Child Support, Paternity | Tags: Child support, Family law, Paternity, Tennessee

Posted by: koherston | May 16, 2013

Failure to Adhere to Parenting Plan is Material Change of Circumstances in Greeneville Child Visitation Modification: Graham v. Graham

Knoxville Divorce Facts: When Mother and Father divorced, the agreed parenting plan designated Father as the primary residential parent of Child and did not allow for Mother to have any visitation. Despite the parenting plan, Mother continued to live in the home with Father and Child for over three years. During this time, Mother committed various crimes, including embezzlement and forgery.

The parties eventually separated, and Mother obtained her own residence. One month later, Mother filed a petition to modify the parenting plan and to establish visitation.

The trial court held that a material change in circumstance had occurred when Parents ignored the terms of the parenting plan and lived together with Child as they had before the divorce and that another material change occurred when Mother was “essentially and abruptly removed” from the Child’s life when the parties’ separated.

The trial court acknowledged Mother’s criminal conduct but found that her conduct, even though despicable, did not change the fact that Mother loved Child and had always been a sound caregiver. The trial court held that the “greater weight of the evidence show[ed] that she would continue to be a good mother.” The court performed a best interest analysis before designating Father as the primary residential parent but holding that Mother should have “liberal unsupervised visitation” with Child. Mother was awarded 140 days of visitation.

Father appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Modification of an existing custody or visitation arrangement involves a two-step analysis. First, the parent attempting to modify the existing custody or visitation arrangement must prove that a material change in circumstances has occurred. There are no hard and fast rules for when there has been a change of circumstances sufficient to justify a change in custody. However, to determine whether a material change in circumstances has occurred, the court should consider whether (1) the change occurred after the entry of the order sought to be modified, (2) the changed circumstances were not reasonably anticipated when the underlying decree was entered, and (3) the change is one that affects the child’s well-being in a meaningful way.

The determination of whether a “material change of circumstances” has occurred requires a different standard depending upon whether a parent is seeking to modify custody, i.e., change the primary residential parent, or modify the residential parenting schedule. Tennessee law establishes a lower threshold for modification of a residential parenting schedule.

In modifying a residential parenting schedule, once a material change of circumstances is found, the trial court must then determine whether a change in visitation is in the best interest of the child. This determination requires consideration of a number of factors, including those set forth at Tennessee Code Annotated § 36-6-106(a) to make an initial custody determination and those at Tennessee Code Annotated § 36-6-404(b) to establish the residential schedule.

After reviewing the extensive record, the Court concluded:

In this case, Parents never adhered to the parenting plan. Parents did not agree on much throughout the trial but each agreed that Mother, whether supervised or unsupervised, was a constant presence in the Child’s life, despite the agreement reached in the initial parenting plan that was adopted by the trial court. Child became accustomed to Mother’s presence and was upset by Mother’s absence. Each change, Mother’s constant presence and then subsequent absence, affected the Child’s well-being in a meaningful way and necessitated a change in the residential parenting schedule that was in the best interest of the Child. Accordingly, we affirm the court’s decision that a material change in circumstances occurred when Mother remained in the home after the entry of the parenting plan and when Mother left the home after years of liberal visitation with the Child….

In this case, Parents submitted exhaustive and at times, duplicative evidence of the other parent’s moral depravity and inability to properly care for the Child. Mother alleged that Father was abusive and vindictive, while Father alleged that Mother was incapable of accepting responsibility for and improving her criminal and deceitful behavior that affected the Child. Notably, the court appeared to agree with each parent’s assessment of the other but found that the Child’s maintenance of a relationship with each parent was in the Child’s best interest. We agree. Each parent in this case has shortcomings; however, the Child will benefit from the continued nurturing that Mother provided after the divorce and the continued stability that Father provided.

Accordingly, the trial court was affirmed.

K.O.’s Comment: Compare this case with Greenwood v. Purrenhage, issued five days later by the Middle Section, in which the Court found Mother’s granting of more time to Father than the parenting plan required was not a material change, but rather an exercise of parental cooperation, which should be encouraged and not penalized. Unfortunately, Greenwood is designated as a “Memorandum Opinion” so it cannot be cited in any other case. Add me to the growing chorus of lawyers critical of what we perceive to be the excessive use of the memorandum opinion designation by the Court of Appeals.

Graham v. Graham (Tennessee Court of Appeals, Eastern Section, March 21, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Child Custody, Post-Divorce Issues | Tags: Best interests, Child custody, Divorce, Family law, Knoxville Tennessee, Visitation

Posted by: koherston | May 13, 2013

Joint Bank Account Leads to Post-Divorce Lawsuit in Nashville: In re Estate of Ellis

Knoxville divorce lawyers Facts: Husband and Wife were married for over 15 years before they divorced. During their marriage they owned joint accounts at the Educators Credit Union and Suntrust Bank with rights of survivorship. The parties entered into a Marital Dissolution Agreement (“MDA”) that was incorporated into their Final Decree of Divorce. Wife was represented by counsel in connection with both the execution of the MDA and the divorce proceedings.

The MDA allocated specific items of property to each party, including real property, vehicles, an annuity fund, retirement accounts, bank accounts, and also allocated debts between the parties.

Specifically, the MDA provided that ”[t]he parties agree that the Husband shall take possession of the following items of personal property and shall assume responsibility of any debts thereon and indemnify and hold wife harmless from any liability and/or responsibility thereon.” The list of items following this declaration included the two numbered bank accounts at SunTrust Bank and Educators Credit Union.

Ten years later, Husband died unexpectedly without a will. The proof showed that he had not notified the bank of the ownership change on the two disputed accounts prior to his death, and it was undisputed that Wife did not access either of those accounts in the ten years between the parties’ divorce and Husband’s death. But shortly after Husband’s death, Wife withdrew virtually all of the money — $181,500 — from the two bank accounts.

The co-administrators of Husband’s estate filed a lawsuit to recoup those funds. They asked the court for a declaration that the funds that were in the two accounts at the time of Husband’s death became the sole property of his estate and that Wife had no property rights in the accounts or in the funds she withdrew from them.

Wife contended that because the Husband never changed the ownership designation on the two accounts, they belonged to her as a matter of law.

The trial court awarded the proceeds of the account to Husband’s estate. The trial court reasoned that the MDA was binding on both parties, and that it “was tantamount to an amendment to their contract that existed upon the initial establishment of the bank accounts.”

Wife appealed.

On Appeal: The Court of Appeals affirmed the trial court.

A Marital Dissolution Agreement is essentially a contract between a husband and wife in contemplation of divorce proceedings. To the extent that an MDA is an agreement as to distribution of marital property, it does not lose its contractual nature by merger into the decree of divorce and it is not subject to later modification by the court.

An MDA is subject to the same rules of construction as other contracts. The cardinal rule of contract construction is to ascertain the intention of the parties and to give effect to that intention, consistent with legal principles. Where there is no ambiguity in the contract, the intentions of the parties are derived from the usual, natural and ordinary meaning of the contractual language.

As with all contracts, the contracting parties to an MDA are bound by a duty of good faith and fair dealing. That duty requires a contracting party to do nothing that will have the effect of impairing or destroying the rights of the other party to receive the benefits of the contract.

Wife argued that she is entitled to all the funds in the two accounts at issue because the failure of Husband to remove her name from them gave her a property right that became vested at his death.

After reviewing the record, the Court found:

We agree that a joint bank account with rights of survival is a binding contract between the joint owners of the account as to the disposition of the funds in the account upon the death of one of the owners. However, contracts can be modified by the subsequent agreement of the parties. Generally, the last agreement as to the same subject matter that is signed by all the parties supersedes all their former agreements and embodies their true agreement. The MDA in this case was agreed to and signed by both parties. The agreement very clearly stated that [Husband] was to assume sole ownership of the two disputed accounts and that [Wife] was to be divested of all her interest in those accounts. Thus, the trial court was correct to find that the MDA “was tantamount to an amendment to their contract that existed upon the initial establishment of the bank accounts….”

[Wife], with advice of counsel, signed the MDA and explicitly gave up any interest in the two accounts. This agreement superseded the joint tenancy designation on the accounts.

Therefore, the trial court’s judgment was affirmed.

In re Estate of Ellis (Tennessee Court of Appeals, Middle Section, March 20, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Marital Dissolution Agreement, Post-Divorce Issues, Property Classification, Property Division | Tags: Division of property, Divorce, Family law, Joint account, Knoxville Tennessee, MDA, Property Classification

Posted by: koherston | May 9, 2013

Termination of Parental Rights Reversed in Gallatin Adoption: In re Kaleb N.F.

Knoxville divorce attorneys Facts: When Child was 11 months old, the Department of Children’s Services (“DCS”) investigated a report of drug abuse by Mother and domestic violence in the home. When the investigation revealed the truth of the report, DCS advised Mother that Child would be removed from the home. Mother was advised that Child would go into State protective custody if she could not find a suitable person to care for Child.

Foster Mother, a single, 20-year-old neighbor with whom Mother was acquainted, happened to be nearby at the time. Mother asked her to take immediate custody of Child pending the DCS investigation, and she agreed. DCS accepted the verbal agreement between Mother and Foster Mother, so Foster Mother was permitted to take temporary custody of Child. Using DCS parlance, Child was “safety-placed” with Foster Mother.

DCS developed a Family Services Plan for Mother, setting out requirements she would need to complete in order to regain custody of Child. Throughout this time, Mother continued to visit with Child for an approximate two-hour visit once per week.

Many months later, DCS filed a dependency and neglect petition. After a final hearing, the Juvenile Court found Child was dependent and neglected due to drug use in the home and the domestic violence between Mother and Stepfather.

Shortly thereafter, DCS closed its case file on Child without notifying Mother. Child continued to live with Foster Mother and Foster Father (by now Foster Mother had married). As before, Mother continued to visit Child once each week. Mother continued to sometimes bring items to the visits, such as milk, diapers, toys, and other things.

Over a year later, Foster Parents filed a petition seeking to terminate the parental rights of both biological parents and to adopt Child. While several grounds for termination were alleged, I am going to focus on (1) substantial noncompliance (a.k.a. persistence of conditions), and (2) failure to support.

Father’s parental rights were terminated by default judgment.

After a trial, the trial court found that Foster Parents had established by clear and convincing evidence two grounds for termination of Mother’s parental rights: (1) that Mother had substantially failed to comply with the “plan of care” for the reunification of Child (referring to the Family Services Plan developed by DCS), and (2) that Mother had abandoned Child by failure to support him for a period of four consecutive months preceding the filing of the termination petition. The trial court also found by clear and convincing evidence that termination of Mother’s parental rights was in Child’s best interest.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Termination proceedings are governed by statute in Tennessee. A party with standing to seek the termination of the parental rights of a biological parent must first prove at least one of the statutory grounds for termination. Secondly, the party seeking termination must prove that termination of the parental rights of the biological parent is in the child’s best interest. Because of the profound consequences of a decision to terminate parental rights, courts must apply a higher standard of proof. Therefore, the elements required for termination of parental rights must be proven by clear and convincing evidence.

Substantial Noncompliance. Under Tennessee Code Annotated § 36-1-113(g)(2), a biological parent’s rights may be terminated if “[t]here has been substantial noncompliance by the parent or guardian with the statement of responsibilities in a permanency plan….” Tennessee Code Annotated § 37-2-403 sets out the specific requirements for a permanency plan:

(2)(A) The permanency plan for any child in foster care shall include a statement of responsibilities between the parents, the agency and the caseworker of such agency. Such statements shall include the responsibilities of each party in specific terms and shall be reasonably related to the achievement of the goal specified in subdivision (a)(1). The statement shall include the definitions of “abandonment” and “abandonment of an infant” contained in § 36-1-102 and the criteria and procedures for termination of parental rights. Each party shall sign the statement and be given a copy of it. The court must review the proposed plan, make any necessary modifications and ratify or approve the plan within sixty (60) days of the foster care placement.

Thus, a “permanency plan” must include the agency’s responsibilities as well as the parent’s responsibilities. It must also include the criteria and procedures for termination of parental rights. The statute requires that a court ratify or approve the plan within 60 days of foster placement.

Section 37-2-403 also provides that substantial noncompliance with the permanency plan is a ground for termination of the parental rights of the biological parent:

(C) Substantial noncompliance by the parent with the statement of responsibilities provides grounds for the termination of parental rights, notwithstanding other statutory provisions for termination of parental rights, and notwithstanding the failure of the parent to sign or to agree to such statement if the court finds the parent was informed of its contents, and that the requirements of the statement are reasonable and are related to remedying the conditions that necessitate foster care placement.

Termination of parental rights based on noncompliance under Tennessee Code Annotated § 36-1-113(g)(2) “requires more proof than that a parent has not complied with every jot and tittle of the permanency plan.” To prove the ground set forth in § 36-1-113(g)(2), the party seeking termination must demonstrate first that the requirements of the permanency plan are reasonable and related to remedying the conditions that caused the child to be removed from the parent’s custody in the first place. Second, the party seeking termination must show that the parent’s noncompliance is substantial in light of the degree of noncompliance and the importance of the particular requirement that has not been met.

After reviewing the detailed record (and repeating the specifics at length, much to the chagrin of your hardworking blogger), the Court concluded:

We must conclude that the Foster Parents have made no showing as to why the ground of substantial noncompliance should be applied at all under the facts of this case. As can be seen from the language quoted above, the statutes on substantial noncompliance have significant built-in protections for the rights of the biological parent. These protections come into play only when DCS has taken the child into State protective custody. Here, DCS repeatedly warned Mother that [Child] could be taken into State protective custody, apparently to obtain her cooperation with their directives, such as ordering her to find a temporary custodian for [Child] and having her agree to a Juvenile Court dependency and neglect order. [Child], however, was in fact never placed in State protective custody; he was instead “safety-placed” with Foster Mother. The record does not contain any definition of safety-placement or outline DCS’s authority and responsibility under such circumstances….

Despite having refrained from taking [Child] into State protective custody, DCS clearly exercised authority over both Mother and Foster Mother; it imposed requirements on Mother via the [] Family Services Plan, restricted her visitation with the child, and required Foster Mother to supervise Mother’s visitation. DCS, however, appears to have assumed none of the responsibility that would normally accompany the exercise of such authority. [The DCS caseworker] openly disavowed any real responsibility, and said that her job consisted merely of “monitoring” the Family Services Plan….

All of this shows that the circumstances of this case are not appropriate for application of the ground of substantial noncompliance with the permanency plan…. [T]he record does not show, that this Service Plan was a “permanency plan” of the type that is required when a child is taken into DCS custody. As noted above, this is because [Child] was never actually taken into State protective custody…. [T]he Family Services Plan recited any responsibilities for DCS at all, other than to follow up to determine the level of Mother’s compliance with her duties. It is undisputed that the Family Services Plan did not inform Mother of the criteria and procedures for the termination of parental rights. The Family Services Plan was never approved by a court, as is required under § 37-2-403(a)(2). Therefore, the Family Services Plan cannot be considered the type of “permanency plan” or “plan of care” that can serve as the basis for terminating the parental rights of a biological parent under § 37-2-403.

Moreover, when the State seeks termination of the parental rights of a biological parent on the grounds of substantial noncompliance, the party seeking termination must show that DCS complied with its statutory duty to make reasonable efforts to facilitate the safe return of the child to the child’s home. The statutory duty to make reasonable efforts includes an obligation to exercise “reasonable care and diligence . . . to provide services related to meeting the needs of the child and the family.” DCS never assumed the responsibility to make reasonable efforts in this case, and its efforts in any event would fall far short of the standard.

For all of these reasons, the Court reversed the termination of Mother’s parental rights based on the ground of substantial noncompliance.

Failure to Support. Under Tennessee statutes, the parental rights of a biological parent can be terminated based on “abandonment” as that term is defined in Section 36-1-102. The pertinent part of Section 36-1-102 defines “abandonment” as follows:

(i) For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child. . . .

The statute further defines the phrase “willfully failed to support” or “willfully failed to make reasonable payments toward such child’s support” as “the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child.” Because a biological parent has a constitutional right to the care and custody of his or her child, the parent’s failure to pay support for a child in the custody of another does not constitute a valid ground to terminate that parent’s rights unless the failure to do so is found to be “willful.” Failure to support a child is deemed “willful” if a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so.

Mother was never under a court order to make support payments, but the obligation to pay support exists even in the absence of a court order to do so. On the element of willfulness, though, Tennessee courts must consider all of the surrounding circumstances. Thus, Mother’s knowledge of a duty or expectation that she provide support is a factor in determining willfulness.

The Court reasoned as follows:

Mother’s routine method of providing support was to give [Child] in-kind gifts, not monetary support. All evidence indicates that Foster Parents acquiesced in this manner of support, and they never asked Mother to pay them money instead. Indeed, both Foster Mother and Mother testified that, when Mother asked Foster Mother to tell her something specific that she should bring for [Child], Foster Mother always responded that the child did not need anything, but that Mother could bring things if she wanted to….

Foster Parents acknowledge that Mother had limited or no employment during the pivotal four-month period. They argue that her underemployment was voluntary, but they submitted no evidence to this effect, and the trial court made no such finding.

Under all of these circumstances, we cannot find that the evidence in the record establishes clearly and convincingly that Mother’s failure to make monetary support payments during the four months preceding the filing of Foster Parents’ termination constitutes “willful” abandonment of [Child].

The Court reversed the trial court’s termination of Mother’s parental rights on the ground of abandonment for willful failure to provide support.

Because the Court concluded there are no grounds for terminating Mother’s parental rights, it did not address whether terminating Mother’s parental rights would be in the best interest of the child.

In re Kaleb N.F. (Tennessee Court of Appeals, Western Section, March 12, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Adoption, Child Custody, Juvenile Law, Parental Rights | Tags: Adoption, Family law, Foster care, Foster Parents, Parent, Tennessee Department of Children's Services, Termination of parental rights

Posted by: koherston | May 6, 2013

Spring in the Smokies

It has been a wonderful springtime in the Great Smoky Mountains National Park. Wildflowers abound, turkeys are strutting, the forest is filling in, and the black bear cubs are as adorable as ever. I hope you enjoy some of the images I was fortunate to capture this year as Spring arrived in the Smokies.

Click on the thumbnail for the larger image.

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Personal, Photography | Tags: Great Smoky Mountains, Great Smoky Mountains National Park, Knoxville, Knoxville Tennessee

Posted by: koherston | May 2, 2013

Token Visitation Argument Rejected in Termination of Parental Rights Trial: In re Adoption of Male Child Z.J.D.

Facts: Mother and Father were married to one another when Child was born in Tennessee. Father moved to Massachusetts before Child was born and, other than one month when Mother lived with Father in Massachusetts, Mother has resided in Tennessee with Child throughout Child’s life. Mother and Father divorced when Child was about two years old, and Mother subsequently married Stepfather, who is her current husband.

Mother and Father’s divorce decree gave Father only supervised visitation with Child. Therefore, Father’s opportunities to visit with Child were dictated by Mother’s schedule. It was undisputed that Father had lived in Massachusetts throughout Child’s life and had come to Tennessee to visit Child an average of once a year, or about 12 times in all.

When Child was 13 years old, Mother joined Stepfather in filing a petition to terminate Father’s parental rights to Child so Stepfather could adopt Child. The petition cited abandonment and failure to support as grounds for termination.

Father visited Child in Tennessee approximately one month before Mother and Stepfather filed a petition. Father spent a few hours with Child on Saturday and a few hours with Child on Sunday. Mother and Stepfather contended that Father exercised only “token visitation” with Child during this visit.

Father presented proof that Mother had made it difficult for him to communicate and visit with Child. Mother presented proof that Father rarely communicated with Child. Child testified that he does not feel comfortable with Father and wants to be adopted by Stepfather.

The trial court concluded that “[Father] has done nothing to show that he is a father” and stated “the Court is of the opinion that it would be in [the child's] best interest to be adopted in this case.” Nevertheless, the trial court denied the petition to terminate Father’s parental rights because “[b]y case law, the father exercised the parenting time he was allowed under the Court Order within four months of the filing of the petition.” Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Stepfather cannot adopt the child unless he can succeed in terminating Father’s parental rights to the child. Stepfather must prove two elements by clear and convincing evidence before a court will terminate Father’s parental rights to the child. First, Stepfather must prove one of the statutory grounds for termination set forth in Tennessee Code Annotated § 36-1-113(g). Second, Stepfather must show that termination of Father’s rights is in the best interest of the child. The heightened standard of proof prevents unwarranted termination of a biological parent’s parental rights.

“Abandonment” is one of the statutory grounds for terminating parental rights and is defined by Tennessee Code Annotated § 36-1-102(1)(A)(i), in pertinent part, as follows:

For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child[.]

The statute clarifies that “[f]or purposes of this subdivision (1), ‘willfully failed to visit’ means the willful failure, for a period of four (4) consecutive months, to visit or engage in more than token visitation.” “Token visitation” is defined as “visitation [that], under the circumstances of the individual case, constitutes nothing more than perfunctory visitation or visitation of such an infrequent nature or of such short duration as to merely establish minimal or insubstantial contact with the child.” A parent’s failure to visit must be willful, and when a parent’s efforts to visit his or her child are thwarted by others, the failure to visit is not willful. Whether a parent’s visitation is “token” requires a fact-intensive inquiry to be determined on a case-by-case basis.

After reviewing the record, the trial court concluded:

The evidence in this case shows that Father lives over one thousand miles away from the child and has a factory job that pays him by the hour. Living so far away on a limited income makes it difficult for Father to visit as often as he may like. Father has made efforts over the years to spend more time and have a more meaningful relationship with the child. Father has bought the child a cell phone, he has offered to bring the child up to Massachusetts, and he has offered to buy the child a laptop. The child was unable to keep track of the phone, and Mother refused to allow the child to go to Massachusetts. Mother also refused Father’s offer to buy the child a laptop.

We affirm the trial court’s finding that Stepfather had not established, by clear and convincing evidence, that Father had willfully failed to visit in the four months preceding the filing of the petition.

The child will soon be fifteen years old, and in little more than three years he will be able to decide for himself the type of relationship he has with Father. In the meantime, Father should not be prevented from being involved in the child’s life. The child’s relationship with Stepfather will presumably remain the same regardless of the fact that Stepfather is unable to adopt him.

Accordingly, the trial court’s decision to maintain Father’s parental rights was affirmed.

In re Adoption of Male Child Z.J.D. (Tennessee Court of Appeals, Middle Section, March 7, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Adoption, Parental Rights, Post-Divorce Issues | Tags: Adoption, Divorce, Family law, Father, Stepfather, Tennessee, Termination of parental rights

Posted by: koherston | April 29, 2013

Father Awarded Custody and Allowed to Relocate in Murfreesboro Divorce: Port v. Hatton

Knoxville divorce lawyer Facts: The parties married in 2009 in their home state of North Carolina, where all of their extended family members live. Soon thereafter, they moved to the Nashville area because Mother wanted to pursue a music career. Shortly after the move, Mother gave birth to Child.

About a year after the move to Nashville, Father filed for divorce. He alleged that Mother was an alcoholic, that she was addicted to illegal drugs, that she neglected Child, and that she was mentally unstable. He asked to be named the primary residential parent and that he be allowed to relocate with Child to North Carolina.

At trial, Father presented evidence of Mother’s behavior that made him doubt her willingness to adequately care for Child, and sometimes even made him fear for Child’s safety. For example, he refused to drink some Gatorade one evening because it gave him heartburn, and Mother woke him up at 2:00 or 3:00 in the morning and forced him to drink it, because she had somehow become convinced that he was trying to poison her. Another evening, Father and Mother were lying in bed with the baby between them, and Mother reportedly said, “The devil is telling me to harm the child.” Father was understandably alarmed, and he urged her to go to a doctor because it was clear to him that she needed help.

Mother denied the truth of much of Father’s proof about her alleged abuse of alcohol and marijuana, and she offered testimony to minimize the implications of child neglect that Father’s account of her behavior suggested. She also gave a very optimistic account of the progress she was making her music career.

The trial court found it was in the best interest of Child that Father be named the primary residential parent. The trial court also held that Father’s proposed move to North Carolina was reasonable and that, without the relocation, Child would be at risk. Mother was awarded a limited amount of supervised visitation — up to three days per month — until she can show that she has no ongoing drug or alcohol abuse issues and can maintain a safe environment for Child. Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Mother challenged the trial court’s designation of Father as the primary residential parent. When making a residential parenting schedule, trial courts in Tennessee must consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent’s lack of good faith in these proceedings;

(5) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(6) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(7) The love, affection, and emotional ties existing between each parent and the child;

(8) The emotional needs and developmental level of the child;

(9) The character and physical and emotional fitness of each parent as it relates to each parent’s ability to parent or the welfare of the child;

(10) The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;

(11) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;

(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

(13) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;

(14) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;

(15) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and

(16) Any other factors deemed relevant by the court.

After reviewing the appellate record, the Court concluded that there was “more than enough evidence to support the trial court’s decision to designate Father as the primary residential parent,” writing:

For example, one of the statutory factors the court is directed to consider is “[t]he parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult.”

This means among other things, that the parent must be willing to set aside his or her own personal preferences if necessary to meet the child’s needs. Father’s unrebutted and consistent testimony at trial show that he is well aware that the needs of his child have to be his first priority, and that he has made every effort to put his child first, and in his own words, to “be the adult your child needs you to be.”

In contrast, Mother’s testimony shows that her priorities were elsewhere and that she often took a very casual attitude towards the child’s well-being. For example, she admitted that she dropped the child on the floor, but her testimony showed that she didn’t feel it was any big deal. At other times, she would leave him strapped in his chair in a wet diaper, while drinking beer or smoking marijuana. Mother did not deny that she drank and smoked in the presence of the child, although she did attempt to minimize the frequency of such incidents and the quantity of alcohol or marijuana consumed….

These and some of the other statutory factors clearly support the adoption of a parenting plan that leaves the child primarily in Father’s care. A review of the record and all the relevant factors confirms the trial court’s decision on best interests. In sum, the trial court did not err in designating Father as the child’s primary residential parent.

Likewise, the Court found the restrictions on Mother’s visitation and Child’s relocation to North Carolina were supported by the evidence. The trial court was affirmed in all respects.

Port v. Hatton (Tennessee Court of Appeals, Middle Section, March 6, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Child Custody, Divorce | Tags: Best interests, Child custody, Family law, Knoxville Tennessee, Tennessee

Posted by: koherston | April 25, 2013

“Self-Terminating” Alimony Leads to Arrearage in Memphis Divorce: Wilkinson v. Wilkinson

Facts: When the parties divorced in 2008, the trial court approved their Marital Dissolution Agreement (“MDA”) that provided Husband would pay Wife transitional alimony of $3000 per month for two years followed by $1500 per month for one year. The MDA further provided that the alimony

payments will self-terminate upon the death of Wife. Said payments will self-terminate upon the remarriage of Wife. Remarriage includes both the ceremonial marriage and cohabitation with an unrelated person for a total of 30 days.

Knoxville alimony lawyer In 2011, Wife filed a petition for civil contempt because Husband stopped paying the court-ordered alimony in late 2008. Husband did so based upon what he claimed was evidence that Wife was cohabitating with someone.Wife denied living with anyone.

After a hearing, the trial court ruled that Wife was entitled to receive the alimony withheld by Husband, which alimony totaled $72,000, even though the trial court found Husband was not in contempt because of the ambiguous “self-termination” language used in the MDA. Wife was awarded her attorney’s fees of approximately $11,000.

Husband appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Civil Contempt. Husband argued the trial court could not order payment of the alimony arrearage in the absence of finding him to be in civil contempt.

Civil contempt is imposed at the insistence and for the benefit of the party who has suffered a violation of rights and the purpose of civil contempt is to coerce compliance with the court’s orders. Civil contempt occurs when a person does not comply with a court order and an action is brought by a private party to enforce rights under the order that has been violated. Punishment for civil contempt is designed to coerce compliance with the court’s order and is imposed at the insistence and for the benefit of the private party who has suffered a violation of rights. Also, in civil contempt cases, the quantum of proof necessary to convict is a preponderance of the evidence.

The substantive difference between civil contempt and criminal contempt is that criminal contempt is not used to enforce a private right of a party, instead, criminal contempt is used to “preserve the power and vindicate the dignity and authority of the law” as well as to preserve the court “as an organ of society.” Another substantive difference is that in criminal contempt proceedings, the defendant is presumed to be innocent and must be proven guilty beyond a reasonable doubt.

The Court rejected Husband’s argument, writing:

Tennessee courts have held that a finding of civil contempt is not a prerequisite to a trial court’s ability to enforce its orders…. [B]ecause the trial court has the power and discretion to enforce its orders in the way it deems best, a finding of contempt was not a mandatory requirement for the award of arrears. Here, the court chose to reduce the arrearage to a monetary judgment without going so far as to hold [Husband] in contempt. From the record, we cannot conclude that the court’s decision in this regard constitutes an abuse of discretion. However, the mere fact that the court relieved [Husband] of a contempt finding will not, ipso facto, relieve him of the judgment made by the court for the purpose of enforcing its order. Thus, the court did not err in granting a judgment to [Wife] on the alimony arrears, notwithstanding the trial court’s failure to hold [Husband] in contempt.

Attorney’s fees. Husband also argued that Wife should not have been awarded her attorney’s fees, even though the MDA said the prevailing party is entitled to his or her attorney’s fees in any action seeking to enforce the MDA. Conversely, Wife argued the trial court erred in awarding her only $11,000 of her nearly $39,000 in attorney’s fees.

The trial court’s determination of a reasonable attorney’s fee is a subjective judgment based on evidence and the experience of the trier of facts, and Tennessee has no fixed mathematical rule for determining what a reasonable fee is. Accordingly, a determination of attorney’s fees is within the discretion of the trial court and will be upheld unless the trial court abuses its discretion.

The Court concluded:

In this case, it is clear that the court limited the award of attorney’s fees to those portions of the litigation in which [Wife] prevailed…. The MDA provides for an award of “reasonable attorney’s fees.” It does not provide for an award of all attorney’s fees. In addition the MDA contemplates that the fees and expenses will be awarded to the party for his or her “successful effort to enforce this marital dissolution agreement.” Based upon the plain and unambiguous language of the MDA, we cannot conclude that the court abused its discretion in limiting the amount of attorney’s fees only to those amounts accrued in the portions of [Wife's] case on which she was actually successful, i.e. the petition for contempt. Moreover, a review of the affidavits filed in support of [Wife's] request for attorney’s fees are itemized and, therefore, the portion of fees attributable to the contempt petition is easily ascertainable.

The trial court’s award of attorney’s fees to Wife was affirmed. In addition, Wife was awarded her attorney’s fees incurred on appeal. The case was remanded to the trial court for a determination of those fees.

K.O.’s Comment: Regarding the propriety of so-called “self-terminating” alimony, the issue was not presented on appeal so the Court declined to either approve or disapprove such a practice. The Court did caution litigants that they rely on “self-termination” clauses at their peril. It noted in a footnote that contracting to allow an obligor spouse to terminate alimony based on a contingency, such as the fact-intensive cohabitation inquiry, without a court order, appears to conflict with established case law. Specifically, the Tennessee Supreme Court has held that a marital dissolution agreement providing for ongoing alimony is subject to modification only by court order. Thus, the best practice for Tennessee divorce lawyers is to avoid using such clauses.

Wilkinson v. Wilkinson (Tennessee Court of Appeals, Western Section, February 19, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Alimony/Spousal Support, Attorney's Fees, Contempt, Marital Dissolution Agreement | Tags: Alimony, Attorney's fee, Contempt of court, Family law, Knoxville Tennessee, MDA

Posted by: koherston | April 22, 2013

Tennessee Supreme Court Upholds Grounds for Termination of Parental Rights: In re Adoption of Angela E.

Facts: The factual and procedural background can be found at my previous post on the Court of Appeals’ opinion. In a divided opinion, a majority of the Court of Appeals reversed the trial court on the issue of grounds for terminating Father’s parental rights, holding that Mother established Father willfully failed to visit the children. The majority opinion further held that the evidence clearly and convincingly established that Father abandoned the children by willfully failing to make reasonable payments toward their support.

Token support?

Judge Kirby (the current holder of the prestigious and highly coveted “World’s Most Awesome Judge” designation!) agreed with the majority’s conclusion that Father abandoned his children by willfully failing to visit them. Judge Kirby disagreed, however, that abandonment by failure to support was shown by clear and convincing evidence in light of Father’s payment history during the relevant four-month period prior to the filing of the termination petition. The Court of Appeals remanded the case to the trial court to determine whether the termination was in the best interests of the children.

The Tennessee Supreme Court granted permission to appeal.

On Appeal: The Tennessee Supreme Court affirmed in part and reversed in part the judgment of the Court of Appeals.

Abandonment is one of the grounds for termination of parental rights. Abandonment is defined as the willful failure to visit, to support, or to make reasonable payments toward the support of the child during the four-month period preceding the filing of the petition to terminate parental rights. To prove the ground of abandonment, a petitioner must establish by clear and convincing evidence that a parent who failed to visit or support had the capacity to do so, made no attempt to do so, and had no justifiable excuse for not doing so. Whether a parent failed to visit or support a child is a question of fact. Whether a parent’s failure to visit or support constitutes willful abandonment, however, is a question of law.

Willful failure to support or to make reasonable payments toward support means “the willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child.” A parent cannot be said to have abandoned a child when his failure to visit or support is due to circumstances outside his control. A parent may not attempt to rectify abandonment by resuming payments of support subsequent to the filing of “any petition” seeking to terminate parental rights or seeking to adopt a child.

A party seeking termination of parental rights must prove by clear and convincing evidence that the opposing party had the capacity to pay support but made no attempt to do so and did not possess a justifiable excuse. Token support payments are not sufficient to preclude a finding of a willful failure to support. Token support is support that “under the circumstances of the individual case, is insignificant given the parent’s means.” In the context of token support, the word “means” connotes both income and available resources for the payment of debt.

For the four-month period immediately preceding the filing of the petition to terminate parental rights, Father paid $3500 in child support to Mother. Mother and Stepfather argued that Father had the ability to pay his child support obligation in full and that his payments were insufficient given his means. No evidence was introduced concerning Father’s monthly expenses, however.

On the issue of token support, the Tennessee Supreme Court agreed with Judge Kirby’s dissent and reversed the Court of Appeals, reasoning as follows:

The evidence concerning Father’s income and expenses is limited at best, however, and we conclude that Mother and Stepfather failed to prove that Father’s payment history between March 5, 2005, and July 5, 2005, reflected mere “token support….”

The trial court concluded that Father’s payment of $3500 during the four months immediately preceding the filing of the petition for termination precluded a finding of abandonment. The evidence does not preponderate against the trial court’s factual findings on which this determination is based. Our review of the record supports the conclusion that Mother and Stepfather failed to prove by clear and convincing evidence that Father’s payment history constituted abandonment by willful failure to support.

Regarding Father’s failure to visit, he did not dispute that he failed to visit the children during the relevant four-month period. Father argued instead that his actions were not willful because his visitation with the children had been suspended by court order.

The Tennessee Supreme Court agreed with the Court of Appeals and rejected Father’s argument, writing:

As the Court of Appeals observed, this is not a case in which a parent was actively trying to maintain visitation….

We agree with the Court of Appeals that the prior order suspending Father’s visitation rights did not preclude a finding that Father willfully failed to visit the children. A preponderance of the evidence supports the conclusion that Father willfully failed to visit his children between July 2003 and July 2005. Although Father filed a petition to reinstate his visitation rights, he took no action to advance the petition. Father had no reasonable excuse for failing to pursue the petition to reinstate visitation during those two years. We therefore conclude that the record contains clear and convincing evidence supporting termination of Father’s parental rights on the ground of abandonment based on willful failure to visit.

Thus, the judgment of the Court of Appeals was affirmed in part and reversed in part. Mother and Stepfather established grounds for termination based on Father’s willful failure to visit the children. Because the trial court did not reach the issue of whether termination of Father’s parental rights is in the best interests of the children, the case was remanded to the trial court for consideration of that issue.

K.O.’s Comment: I had hoped the Court would use this opportunity to provide some direction about what constitutes “token support” in termination of parental rights cases. Unfortunately, this opinion does not give us much in the way of guidance for future cases. I think the blame lies with the lack of evidence at the trial court level regarding Father’s income and expenses.

Also, before someone comments, no, I did not make a typo on the style of this case! Footnote 2 of the opinion says: “The first letter of the children’s last name is ‘E’ and not ‘T’ as reflected in the notice of appeal and the opinion of the Court of Appeals.” So if you’re going to be nitpicky about it, blame the Court of Appeals.

In re Adoption of Angela E. (Tennessee Supreme Court, March 13, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Adoption, Child Custody, Child Support, Parental Rights, Post-Divorce Issues | Tags: Adoption, Child support, Family law, Tennessee Supreme Court, Termination of parental rights

Posted by: koherston | April 18, 2013

Failure to Promote Relationship With Other Parent Leads to Loss of Child Custody in Nashville: In re Zamorah B.

Knoxville Child Custody Attorneys Facts: Child was born to unmarried Mother and Father. Father filed a Petition to Establish Paternity in which he asserted that he had voluntarily supported Child and had emotionally bonded with her, but that Mother decided two months after Child’s birth to eliminate him from her life. Shortly thereafter, Mother filed a Petition to Establish Parentage.

A hearing occurred before the Juvenile Court Referee, after which Mother was designated the primary residential parent and visitation was ordered for Father. Mother requested a rehearing before the Juvenile Court Judge, alleging that “visitation was unfairly decided.” Before the rehearing could occur, the parties filed numerous motions, the substance of which indicates that Father was primarily attempting to exercise his visitation rights while Mother was trying to prevent Father from exercising any visitation with Child.

The final custody hearing took place before the Juvenile Court Judge over 10 separate days. The trial court filed a 40 page final custody order in which it designated Father as Child’s primary residential parent. Mother was awarded two hours of supervised visitation each week. The trial court stated it would consider modifying visitation if Mother complied with the rules of visitation, refrained from violating prior court orders about speaking negatively about Father in the presence of Child, and followed the recommendations of counselors. The trial court also recommended that Mother receive anger management and parent education training.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Legal Standard. Mother first argued the trial court applied an incorrect legal standard. Specifically, Mother argued the trial court erred by treating the preceding as one for an initial child custody order instead of one seeking to modify an initial child custody order.

When a party seeks review by the juvenile court judge of a referee’s decision, the referee’s report and findings, including any order reflecting such findings, remain only a recommendation. Review of a referee’s decision in a juvenile case is accomplished through a de novo hearing before the judge. The de novo hearing is not a review of the record presented to the referee, but is a full evidentiary hearing akin to a new trial. In a de novo hearing, the juvenile court judge must decide the issues without regard to the actions of the referee.

Mother’s argument was rejected. The Court said the Referee’s Parentage Order remained a recommendation because Mother sought review by the Juvenile Court Judge. It never became an order of the court. The Juvenile Court properly ruled that the proceeding before it was one to establish an initial child custody order and that the proper legal standard was the child’s best interest.

Best Interest of Child. Mother then argued the trial court erred in naming Father the primary residential parent. In its best interest analysis, the trial court considered the relevant factors set out in Tennessee Code Annotated § 36-6-106(a). After reviewing the record — and citing several examples of deplorable conduct by Mother —the Court reasoned:

The trial court applied each of the statutory best interest factors and found that some did not indicate custody with one parent over the other was in the best interest of the child. The court found that other factors favored Father as the primary residential parent….

The decisive factor for the trial court, however, was “[e]ach parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.” The court set out its reasoning as follows:

No proof has been presented that either parent lacks the ability to perform day-to-day parenting tasks. However, this factor goes overwhelmingly in favor of the father. After being before the court on numerous occasions, the mother has repeatedly refused to abide by the Court’s order regarding derogatory remarks about the father in the presence of the minor child, visitation, and medical issues. On April 2, 2010, the Court emphasized “to both parties the impact their inability to co-parent effectively has on [Child] and to a custody determination.” However, the mother has continuously allowed her feelings about the father to control her behavior despite numerous Court Orders. Furthermore, the Court previously ruled that the mother was in contempt for withholding visitation on at least one occasion, although there was testimony regarding more incidents. This has led to the parents’ inability to effectively co-parent for the benefit of the minor child. The mother has proved that she is completely unwilling to promote, encourage or facilitate a close and continuing parent-child relationship between the child and her father. The father has testified, however that he encourages a relationship between the mother and child by speaking to the child positively about the mother, soothing her when the child cries for the mother, buying the mother a mother’s day card, and offering and driving the minor child to Nashville, TN for Christmas day 2010 visitation with the mother and child. This is a deciding factor in this case, and the court finds that the father is definitely the more satisfactory parent as it pertains to this factor.

The willingness of a parent to facilitate and encourage a close relationship between the child and the other parent is an important factor for the courts to consider in custody cases. Indeed, our legislature has stated that “the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests.”

[Tennessee] case law is accordingly replete with examples where the greater willingness of one parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent has been the decisive factor in determining parenting arrangements….

The trial court found in this case that, “[t]he mother has proved that she is completely unwilling to promote, encourage or facilitate a close and continuing parent-child relationship between the child and her father.” We agree. The evidence also showed that Father was a loving, caring parent, and that he was willing to promote and encourage [Child's] relationship with Mother for the sake of the child.

Accordingly, the order of the trial court was affirmed.

In re Zamorah B. (Tennessee Court of Appeals, Middle Section, February 15, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Child Custody, Juvenile Law, Procedure | Tags: Best interests, Child custody, Family law, Juvenile Court, Referee, Tennessee

Posted by: koherston | April 15, 2013

Parents With Disabilities Have Greater Risk of Losing Custody of Their Children

A report from the National Council on Disability finds that parents with physical or mental disabilities have a greater risk of losing custody of their children. The study says that the U.S. legal system needs to provide more support for these parents. National Public Radio recently discussed the study in detail.

Click here to listen to the National Public Radio broadcast from “Talk of the Nation.” If you prefer to read it, the transcript appears below.

NEAL CONAN, HOST:

This is TALK OF THE NATION. I’m Neal Conan in Washington. Raising a family can be difficult at times, but parents with disabilities face additional challenges. A new study from the National Council on Disability finds they face discrimination at any number of levels. They are much more likely to lose custody of their children. They are more often denied adoption, and women with disabilities may be denied fertility treatments.

Authors of the report argue that parents with disabilities don’t get the legal protection or support they need, but there are cases where removing a child from a parent’s custody may be the only option.

If you have personal insight as a child, as a social worker or as a parent with a disability, call and tell us your story, our phone number 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That’s at npr.org. Click on TALK OF THE NATION.

Later in the program, Robert Lipsyte on the legacy of baseball union chief Marvin Miller. But we begin with Ella Callow, a lawyer who works with parents with disabilities and their families. She joins us now from a studio in Berkeley, California. Good to have you with us today.

ELLA CALLOW: Hi Neal, thank you for having me.

CONAN: And reports like this one, instructive but necessarily about broad strokes. Can you tell us about one family and what happened that kind of encapsulates these findings?

CALLOW: Yeah absolutely. This report is really – you know, I say it’s more like a compendium. It has so many examples and so many families. But I think that one family that I’ve worked with for a number of years sort of from the beginning of the process through hopefully soon completion really encapsulates the issue for me.

These are two parents who both have intellectual disabilities and are in a Midwestern area where there are not a great deal of resources available to them as people with disabilities. However, their child was removed from them at birth, basically, or just soon thereafter.

There was no abuse, there was no neglect, there was simply speculation that based on their disability and, you know, based on their IQ that they would be unfit to parent at some point, that their disability in and of itself posed a danger to their infant child.

I those are the most troubling types of cases because the people making the decisions often are not terrible well-versed in parenting with a disability. They don’t know, for example, that we have 20 years of research that shows that IQ is not predictive of parenting capacity in and of itself, and yet IQ testing is heavily relied on quite frequently to justify removals.

This family went to great efforts with support people to reach out and find resources. They contacted us, and we were able to ourselves – you cold-call universities in the state and find a psychologist who had familiarity with this population. She came, did a full assessment, came up with an excellent plan to safely reunify the child with her family over time.

And the plan was refused. The state refused to pick it up. They really didn’t want to deal with it, didn’t want to engage it. They just saw the alternative of this child remaining with her foster parent or being adopted as superior as an option to returning to her family.

They moved forward to have the parents’ rights terminated. Fortunately in this particular state, and very unusually child welfare cases are heard by juries. And so the jury found that the state had not met its obligation and had to try to work the plan or try to work with the family towards reunification, and they’re still in that process at this point.

We, you know, were unable to trigger findings by either Health and Human Services or involvement by the Department of Justice in the case. The Department of Justice doesn’t have the clearest jurisdiction over these types of issues, that’s Health and Human Services. But we were never able to get anyone to really find that this was discrimination.

And that’s sort of the problem, that after 25 years of working on this issue, very clear legal constitutional strategies to question the laws that make removal so easy has not emerged.

CONAN: This goes state by state, and you were talking about parents with cognitive disabilities. How old is the child now?

CALLOW: She’s four years old, and they’ve been in contact with her, and she is in their area, and they’re lucky because in many of these cases, the children, they really have no contact, or they’re moved quite a distance out of either necessity, there’s no one locally, or because the child – and many children in the child welfare system have disabilities themselves.

The child needs some sort of special care, and so they’re removed to a further location.

CONAN: Joining us now is Robyn Powell, who is an attorney advisor at the National Council on Disability and co-author of the study “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children,” joins us from Cambridge, Massachusetts. Good of you to be with us today.

ROBYN POWELL: Thank you for having me.

CONAN: And we’re talking not just about people with cognitive disabilities but people with physical disabilities, too.

POWELL: Absolutely. This covers people with varying disabilities: people who are blind, people who are deaf, people who have psychiatric disabilities, people who have mobility disabilities. It’s an issue across disability.

CONAN: And as I’m sure you know better than I do, some of those people would say wait a minute, we don’t have disabilities.

POWELL: Oh absolutely, and so the estimates that currently 4.1 million disabled parents exist in the United States is certainly an underestimate, by and far.

CONAN: And you’ll forgive me, but why isn’t this covered under the Americans With Disabilities Act?

POWELL: Well, that’s an interesting question, and in the report, we argue that it is. Here we are 22 years after the passage of the ADA, and we have state laws that state that disability can be ground for termination of parental rights. I believe, the National Council on Disability believes, that this is in clear violation of the ADA.

CONAN: And I guess that remains to be – you remain to find a judge that will agree with you.

POWELL: Absolutely, and unfortunately it’s probably going to have to go to the Supreme Court to have that decided.

CONAN: In the meantime, we have stories like these, and the story that Ella Callow was telling us, that can be replicated for people who are blind, for people who are deaf.

POWELL: Yes absolutely. In Missouri back in 2010, we had a blind couple who lost custody of their child two days after she was born simply because a nurse oversaw that the mother was having trouble breastfeeding, which many new mothers do, and she reported it to Social Services that she thought that these parents were going to be unfit because they were blind.

The couple then had to endure a long fight. It was 57 days of not having their newborn with them. So this happens often, and it happens, again, across all disabilities.

CONAN: Let’s get some callers in on the conversation. We want to hear from those of you with insight into this, as parents with disabilities, as children of those parents or social workers yourselves, 800-989-8255. Email us, talk@npr.org. And Scott’s(ph) on the line with us from Pleasant Hill in California.

SCOTT: Yeah Neal, thank you for taking the call. I can’t believe how timely this is. My name is Scott, and I graduated Yale in ’91, and I have no cognitive problems, but I’ve had Hodgkin’s lymphoma four times. I was a Wall Street whistleblower, and currently I’m in – I spent about $40,000 that I don’t have, I’m permanently disabled, from bone marrow transplant, toxic treatments, et cetera.

But I’m OK now, and my twin daughters that we had through fertility treatments are about to be ruled through a public mediator that spent – went way over the allocated two-hour time limit. She spent four hours with us, but the entire – and I really try to be accurate with my statements – the – almost the entire four hours was spent where the mother of our girls and the court mediator, who is I think a social worker, a licensed clinical social worker, were on the offensive, asking me as sweat was pouring down my face because – and I was wearing a jacket and tie, and I tried so hard – that what was my team to support me.

And then, you know, as far as if I couldn’t walk that day, and I can get through taking care of my girls on a day or two, and I’ll rest on the third when they go back to their mom, that wasn’t even an issue. The mom painted a picture that wasn’t accurate.

And then finally, and I’ll try to be brief here, when the report came out, the judge even said that after reading the mediator’s report, which they accept because of the caseloads, they accept about nine out of 10, and the lawyer in Berkeley can correct me, but about 90 percent are accepted by the judges almost verbatim because they have to look at other factors in the divorce, separation case.

The judge ruled that this – it looked like a reunification plan, as if I were a felon getting out of jail after five years. And I just, I was shaking in the courtroom. I couldn’t believe what I was hearing. So but anyway, I’m still about to lose custody, and I’ll need supervised visits, and I’m a perfectly capable father and want to be.

CONAN: Ella Callow, there are divorce cases, it would seem, and child custody cases stemming from them, I guess just on the basis of the statistics, there’s a lot of people in Scott’s situation.

CALLOW: Wow yeah, Scott brought up so many issues, and first of all, I’m so sorry for him that he’s dealing with this. It’s so difficult to be going through a custody battle in and of itself and then facing sort of discriminatory treatment at the same time is – just makes it unbearable for many people.

A couple of things he mentioned, you know, I would like to speak to. One yes, this is very common. And what people don’t realize is that while termination of parental rights, the jurisprudence involves the 14th Amendment, and so there’s a bit of a higher standard for the state to remove a child, that they have to show theoretically that a parent is unfit.

In family law cases, the standard is much lower. It’s the best interest of the child standard, and you’re not having the state intervene and take a child, it’s between two equally situated parents. So these parents sometimes face an even greater uphill battle, and they have no right to counsel, whereas in most termination of parental rights, child welfare cases, they do have counsel, even if they’re overwhelmed counsel.

The second thing is that he’s correct. Mediators are – the decisions of mediators on custody are followed in the state of California, where he’s located, upwards of 90 percent of the time. So if you lose in mediation, you’re going to have a very difficult time moving the case in the other direction. And social workers, and I have a social welfare degree from UC Berkeley, and there are wonderful social workers out there, but I’ll tell you that in my training and my experience, they don’t get much education on this topic despite the high number of parents they will encounter, especially if they’re working in child welfare.

But in either family or child welfare courts, they will be dealing with parental disability, and they’re not provided the education around what are best practices of these parents, what are assumptions and attitudinal biases you need to be aware of when working with them, when do you need to reach out for consultation or put into your reports that you don’t have expertise in this area. So it is problematic.

CONAN: And he also mentioned that his wife, or ex-wife I guess, was misrepresenting the facts, and obviously we don’t know the facts in this particular case, but that’s hardly unusual in some – in divorce cases.

CALLOW: Yeah, it’s – you know, I think we all understand as a society that it’s a time no one plans to be in, and emotions run very high, and everything tends to look more awful, and so paint worse pictures of one another, and disability can be mud they throw at the wall, seeing if it sticks.

CONAN: Scott, thank you very much for the call, and we’re sorry for your situation. We hope things work out.

SCOTT: How can I get a transcript? Thank you, Neal.

CONAN: Go to npr.org after the show is off the air, and we can help you out with that. Scott joined us from Pleasantville – Pleasant Hill, California. Stay with us. We’re talking about the rights of parents with disabilities. It’s the TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

CONAN: This is TALK OF THE NATION from NPR News. I’m Neal Conan. A new study from the National Council on Disability estimates that more than six million children in the U.S. have parents with disabilities, and those with psychiatric or intellectual disabilities lose custody of their children at an incredible rate, as much as 80 percent of the time.

Clearly there are some cases where removing a child is necessary for the child’s health and safety, but the report’s authors believe that’s not the story here, that discrimination is at the root of these numbers. The Americans With Disabilities Act is supposed to protect those parents, but the report finds it’s not working out that way.

If this is your story, if you’ve been part of it as a child, a social worker or a parent, we’d like to hear from you, 800-989-8255. Email us, talk@npr.org. You can also join the conversation on our website. That’s at npr.org. Click on TALK OF THE NATION.

Robyn Powell, co-author of the National Council on Disability study, and Ella Callow of the National Center for Parents with Disabilities and Their Families, are our guests. And let’s see if we can get another call in. This is Leila(ph), Leila with us from Spring Harbor in Michigan.

LEILA: Hi.

CONAN: Hi.

LEILA: Hi, Neal.

CONAN: Go ahead, please.

LEILA: Well, I’m a licensed clinical social worker, and I actually practice in Indiana, and I’m really proud of our state. I don’t feel at all like we discriminate individuals with disabilities. I’ve worked with, you know, parents on both ends of the spectrum where I felt like I was placed in a home where it wasn’t safe, and we made every attempt to unify the parent with the children.

And then on the other end I’ve had a quadriplegic, you know, family that wants to have children, and we’ve helped to facilitate adoption to make that possible for that family. One family in particular where it was unfortunate, you know, we had two parents with intellectual disabilities, and the mom kept having multiple miscarriages, she didn’t know she was pregnant.

When I actually came into the home to work with the family and provide wraparound services, I mean she had a five-year-old, a three-year-old, a one-year-old, and then she had twins. She didn’t know she was pregnant, ended up actually losing one of the twins and the other baby was a high medical needs situation.

So I feel like – I don’t know what states this study included, but I feel in Indiana we really try to make every effort to provide services to families with special needs.

CONAN: And that decisions are made on a case-by-case basis and not reflexively saying if you’ve got disabilities, you’re disqualified.

LEILA: Absolutely, and we have great judges in our community that really work hard to make it possible to give supports to these types of families. But again, you know, in all reality it’s been my experience when you have families with some medical issues or high special needs, oftentimes the children have high special needs that require, you know, extra services that maybe some parents aren’t able to provide.

And if they don’t have family support, there has to be an alternative plan.

CONAN: Robyn Powell, did you look at Indiana?

POWELL: We looked across the country, and in our report we do show that over two-thirds of the states in the United States, their child welfare laws allow courts to reach the determination that a parent is unfit on the basis of the parent’s disability. I’m not sure at the moment whether Indiana is one of those states.

CALLOW: Indiana is not.

POWELL: Indiana is not. Okay.

CALLOW: No, so that is a difference.

POWELL: Right, absolutely, as Ella said, it’s absolutely the difference there.

CONAN: Well, Leila, thanks very much for the call.

LEILA: …to Indiana and see what we’re doing different.

CONAN: Thank you very much.

CALLOW: You know, and I also want to add that, you know, she touched on something really important, which is that families where the parents have greater needs themselves, sometimes the children do as well. The problem is that because the discrimination has been so incredibly pervasive over so many decades, and these parents face so much discrimination in their day-to-day lives, they’re often fearful of reaching out for any help because they understand that it renders them overexposed.

And once they become involved with that system, they don’t trust that their disability will not be used as something that grounds a removal as opposed to something that secures services for them. And that’s very frightening to us.

CONAN: Joining us now is Linda Spears, vice president of policy and public affairs at the Child Welfare League of America, joining us from her home in Upper Marlboro, Maryland. Thanks very much for being with us.

LINDA SPEARS: Good afternoon, thank you, Neal.

CONAN: And I knew these stories speak powerfully to you. I’m sure you have experience where these are awful decisions, sometimes difficult to make.

SPEARS: They are difficult decisions to make, and I think that there are a variety of factors that contribute and that say that I think everyone is right in this scenario, that there are lots of good workers out there trying to do the right thing, and at the same time there is an awful lot of discrimination and bias.

And I would differentiate between bias at the worker level and bias at the systemic level that affects these families, and I think even when workers try hard, there’s often bias at the systemic level – a lack of resources targeted to these families, a lack of policy that supports getting families preventive services before a child welfare intervention is needed.

The nation is replete with a lack of prevention and early intervention services for all kinds of families in the child welfare system. But I think that the impact on very vulnerable adults with disabilities, children with disabilities, can be very disproportionate. So it’s a complicated question.

CONAN: You raise an interesting point, though, about resources. There are situations where either through interventions of one sort of another, early intervention, as you mentioned, but also either physical or having somebody come by the house every once in a while, where that might make it possible for people to keep their children.

SPEARS: Uh-huh. Uh-huh. I mean we’ve – you know, exactly. I look at the system – I have elderly parents. I look at the system we have in our country, which is woefully inadequate but still exists, that provides elderly folks with in-home aid, with support services, where the variety of things to enable them to maintain their independent functioning for as long as they are health-wise able to.

We don’t have such a thing for people with disabilities who are parenting. We may have some things for them as disabled individuals that function well, but as parents, in their role as parents, there’s not a lot out there that really targets this population of families, provides them with supports so that they’re not at risk of getting into trouble and so that they’re not afraid to go and access the service, as Robyn just mentioned.

Families are often fearful to go to the child welfare system for preventive or early intervention services, and that’s with good reason. The child welfare system is designed in a way that is really oriented towards punitive measures, toward deficit functioning. Many child welfare systems are trying to switch that orientation, but we have a statutory framework in this country that says failing to parent gets you support and not desiring to parent.

CONAN: That’s interesting.

SPEARS: And I think that’s a really fundamental problem in the way that we provide our services. Now, that said, we don’t want, you know, sort of a policy and government overreach in the families’ lives. But at the same time, when families struggle, when families need support and don’t have any place to go, and then you set up an intervention so that it punishes them for seeking or needing help, it seems unreasonable.

CONAN: Here’s – I just wanted to get to this email from Diane(ph) in Battle Creek in Michigan: My husband’s aunt is intellectually challenged and is married to a man also intellectually challenged. They both hold jobs and own their home. Before they got married, however, my husband’s grandmother, the mother of the aunt, had her daughter, the aunt, sterilized so she could not have any children.

The rationale was the couple would not have been able to care for the child. And Ella Callow, does that sort of thing go on?

CALLOW: Yeah, I mean we have 100 years of really bad policy around parenting with this population, sadly. You know, sterilization, which render people physically unable to have children, and institutionalization, which segregated them out of society so they didn’t have opportunity to become parents, were the way this population was dealt with.

Eugenics is based largely on concerns that they would reproduce and that it would be bad for children and bad for society. After de-institutionalization and this sort of – the disability self-determination movement, disability rights movement, they went out into the world and the mantra became not it’s bad for society but it’s bad for children, for them to have children.

And there are still states with laws on the book that allow for sterilization, though it’s very few, and it’s through judicial process at this point. But people are talked into it. And I think, you know, Robyn can speak to the issue that women with disabilities face when they’re interfacing with the medical community, the assumptions that are made about whether they should have children and what are the proper choices for them.

CONAN: And Robyn, I wanted to ask you particularly about fertility treatments.

POWELL: Absolutely, well, first back to what Ella had mentioned. I’m a woman with a physical disability, and I can’t tell you how many times I’ve been offered a hysterectomy.

So it was not even through just sterilization, through traditional systems. But every time I go to the doctors, they suggest that for me. I don’t have a medical reason to have one. I’m only 31 years old. I’d like to have children. And so there is this belief among society – and the health care profession, as well – that people with disabilities do not want to have children or cannot – want – have children, and so that carries on to the fertility treatment. Providers of assisted reproductive technologies are often discriminating against prospective parents who have disabilities based solely on their presumption that this individual should not have a child.

CONAN: Let’s see if we get another caller in. This is Rachel, Rachel with us from Hampton in South Dakota.

RACHEL: Yes. Thank you. I’m coming from being a children’s advocate in the hospital setting. I’m actually a child life specialist, which is not the same as a social worker. We work with children and families to promote ideal development, and also to try and prevent unnecessary stress and trauma and to facilitate coping for families. However, often, I came across – I don’t want to say battles, but maybe a battle of wills with sometimes social work staff, sometimes physicians, when they would realize that one of the kids – when a child was sent home, and perhaps they were being sent home with a medication regimen, or if they had a chronic illness, that when the parents were illiterate, that meant they were unable to care for their children.

CONAN: Illiterate?

RACHEL: And I thought…

POWELL: Yeah.

RACHEL: Yes. And I thought…

CONAN: There were several thousand, tens of thousands of years of human history where all parents were illiterate.

(LAUGHTER)

RACHEL: Well, that’s…

POWELL: Right.

RACHEL: …the whole thing, and I would then – you know, well, they have to give the medicine and they have to give it at the right time. And I, you know, constantly set up charts and show them how I – you know, we can make a chart, and this parent – you know, these parents would show unbelievable care for their children in the hospital. And then suddenly, it was, oh, my gosh. This mom can’t read, and this kid has sickle cell disease. Well, this kid has been coming to us for 12 years, and no one’s ever noticed that before? Because I know I’ve made charts for her for 10 years.

And so it’s been really – that, to me, was one of the things that was most difficult, is when kids come into the hospital, people haven’t recognize it or acknowledge it or had a problem with it yet. But if some child came in, let’s say, because she had a serious infection and said she had to go home on an antibiotic regimen, or maybe a parent had to be taught how to clean a child’s central line, but these parents showed all of – they were doing all of that in the hospital. And then we would get recommendations that, you know, perhaps this child should go to foster care because for whatever reason, whatever the disability be – and I’d tell you illiteracy is a big one. But that, you know, they just may not be able to do this, even though they’ve proven themselves. And so fortunately, I am a strong will and…

(LAUGHTER)

CONAN: Sounds like it.

CALLOW: Yeah.

RACHEL: …and a very strong advocate because most of the time, I was able to prove that, no, I think we’re absolutely wrong and documenting them. You have to document, document, document in the hospital what you’ve seen this parent do so that people know, because that’s the other thing. When people come in and parents are – who had disabilities and they’re noticeable, instantly, they are labeled by many people in a hospital setting.

CALLOW: Yup.

RACHEL: And right away, discharge to foster care is being considered from almost the day they come into the hospital.

CONAN: Rachel, thank you very much. That’s an alarming story…

RACHEL: Yeah.

CONAN: …but thank you.

(LAUGHTER)

RACHEL: It is, but it’s something for people to be aware and to help these parents.

CONAN: Thank you again. We’re talking…

CALLOW: You know – I’m sorry, Neal. I just wanted to interject. You know, between the first caller, Neal, who’s in our area didn’t contact us, and Rachel who’s out there fighting battles in South Dakota on her own, I do want to mention that the National Center, which I direct legal programs for, is Through the Looking Glass. Our agency, we’re a local agency in Berkeley. We serve about 400 families a year doing preventative services, assessments of parents so that we have generated evidence that parents can or cannot safely parent.

We work with children with disabilities, as well. And, you know, if people like Rachel feel like they’re isolated and they want some help, we have free legal technical assistance and, you know, can provide a lot of information to them, and people like, Neal, you know, contact us.

CONAN: Ella Callow is legal program director at the National Center for Parents with Disabilities. Also with us, Robyn Powell, attorney adviser at the National Council on Disability, and Linda Spears, vice president of policy and public affairs at the Child Welfare League of America. You’re listening to TALK OF THE NATION, from NPR News. And, Robyn Powell, let me turn back to you for a moment. Is inability to read defined as a disability?

POWELL: It can be, actually, yes. If it is really to an intellectual disability, I undoubtedly think it could be. And it’s that – what she brought up is a huge issue. When parents with disabilities bring their children either into the hospital or even to the pediatrician, they’re facing health care providers that have these biases. We spoke with parents who had their child’s pediatrician report them to child welfare for no reason. The investigation was completely unfounded, but they believe it was really to their disability.

And again, this is happening often, and this is a detriment not only to the parent, but it’s a detriment to the child. It’s very stressful to have your parents being investigated. It has huge cost to both the parent and the child.

CONAN: There is another, I guess, definition of disability. To include the deaf would be – many would find offensive. They have, obviously, their own language, their own culture. This is an entire community.

POWELL: Yes. That’s a great point, and some deaf folks do not consider themselves disabled. Nonetheless, we did talk with many deaf parents when we were writing this report, and they have similar issues. They’ve also encountered bias and discrimination within the child welfare system, where they bring up language issues. They state that the children are not learning a language because sign language is their first language at home. And so the deaf community is experiencing similar issues, absolutely.

CONAN: And we’re talking about legal recourse on the federal level, or is this going to be a battle that worked out state by state?

POWELL: Well, I think it’s going to have to involve both state level and federal level mediation. We really need to change the law federally. I mean, it’s certainly the best and most comprehensive way to approach this. But nonetheless, states need to also look at their child welfare centers, look at their family law statutes and change how disability is included – remove disability as a ground for termination of parental rights. In our report, we offer model legislation, which we urge both the states and the national government to really adopt as soon as possible, urging Congress to look at this issue, similarly to how they looked at the Indian Child Welfare Act. When that was adopted, that was adopted because Native American families were encountering similar barriers.

CONAN: Robyn Powell, coauthor of the study “Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and their Children.” Thank you very much for your time.

POWELL: Thank you.

CONAN: Ella Callow, thank you for your time, as well.

CALLOW: Thank you, Neal.

CONAN: And we’d also like to thank Linda Spears of the policy and Public Affairs Center at the Child Welfare League of America. Coming up next: the legacy of Marvin Miller. This is NPR News.

Source: Parents with Disabilities and Family Law (National Public Radio, November 27, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Child Custody, Parental Rights | Tags: Child custody, Disability, Divorce, Family law, Foster care, Knoxville Tennessee, Parents' Rights

Posted by: koherston | April 11, 2013

Refusal to Terminate Alimony Reversed in Winchester Divorce: Finchum v. Finchum

knoxville alimony lawyers Facts: The parties were divorced after 10 years of marriage. The trial court approved the parties’ Marital Dissolution Agreement (“MDA”) providing that Husband would pay Wife rehabilitative alimony for a period of 30 months in the amount of $1000 per month. The MDA stated that the alimony payments would terminate upon Wife’s death.

The trial court later approved an Amended MDA in which Husband agreed to extend the period he would pay Wife rehabilitative alimony from 30 to 36 months. The Amended MDA stated, as did the initial MDA, that the alimony payments would terminate upon Wife’s death.

About a year later, Husband filed a Petition to Modify in which he sought to terminate his alimony payments based on Wife’s remarriage. Wife filed a counter-petition in which she alleged Husband was in contempt of court for unilaterally terminating his alimony payments. Wife also argued the alimony ordered was alimony in solido and, therefore, not subject to modification.

The trial court ruled the alimony provisions contained in the marital dissolution agreement are contractual in nature between the parties and are not subject to modification. Husband was ordered to pay all past-due alimony, and Wife was awarded a judgment for her attorney’s fees.

Husband appealed.

On Appeal: The Court of Appeals reversed the trial court.

Tennessee law provides that trial courts may award four different types of alimony in divorce cases: rehabilitative, in futuro, transitional, and in solido. The MDAs the trial court approved in this case expressly provided for Husband to pay rehabilitative alimony. Rehabilitative alimony is defined as follows in Tennessee Code Annotated § 36–5–121(e)(1):

Rehabilitative alimony is a separate class of spousal support, as distinguished from alimony in solido, alimony in futuro, and transitional alimony. To be rehabilitated means to achieve, with reasonable effort, an earning capacity that will permit the economically disadvantaged spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.

As the statute provides, rehabilitative alimony is modifiable by the court at any time:

An award of rehabilitative alimony shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of a substantial and material change in circumstances….

After reviewing the record, the Court concluded:

Tennessee Code Annotated § 36–5–121(e)(2) is unequivocally clear that “[a]n award of rehabilitative alimony shall remain in the court’s control for the duration of such award, and may be increased, decreased, terminated, extended, or otherwise modified, upon a showing of substantial and material change in circumstances.” The fact that Husband agreed to pay Wife rehabilitative alimony as part of an MDA does not mean the alimony cannot be modified or terminated, because the trial court adopted the Amended MDA as part of its Order and maintains control over the alimony as provided in the statute….

The parties did not specify, as Wife suggests, that the rehabilitative alimony was modifiable only upon the death of Wife. As Husband notes in his brief, establishing rehabilitative alimony for a definite period of time does not transform the award into a different type of alimony or make it unable to be modified by the trial court. To the contrary, rehabilitative alimony is granted for a specific duration….

We hold the trial court erred in ruling that the alimony payments could not be modified. Accordingly, we remand this case to the trial court to determine whether Husband can prove a substantial and material change in circumstances sufficient to warrant a modification or termination of his rehabilitative alimony as of the date of his petition….

The Court also remanded the award of attorney’s fees to Wife with instructions to award only those fees attributable to the contempt petition.

Finchum v. Finchum (Tennessee Court of Appeals, Middle Section, February 13, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Alimony/Spousal Support, Contempt, Post-Divorce Issues | Tags: Alimony, Divorce, Family law, Knoxville Tennessee, Tennessee

Posted by: koherston | April 8, 2013

Property Division and Alimony Modified in Gallatin Divorce: Hatfield v. Hatfield

Facts: After 24 years of marriage, the parties were divorced. Both parties were 46 years old. Wife was primarily a stay-at-home parent after the parties’ first child was born. After a two-day trial, the trial court found

[Wife] had a need of $2,300 per month. [Husband] had the ability to pay only $1,500.00 per month. There were no assets from which an award of alimony in solido could be immediately paid.

The trial court awarded virtually the entire marital estate to Wife, consisting of equity in the marital home ($242,227) and the 401(k) ($40,872). This resulted in an award of 99% of the marital estate to Wife according to Husband’s calculations, or 96.5% using Wife’s numbers. The trial court also awarded Wife alimony in futuro in the amount of $1,500 per month and stated it was awarding her “a larger share of the property because the Husband cannot afford to pay her need.”

Husband appealed, challenging both the division of property and the alimony award.

On Appeal: The Court of Appeals reversed and modified the trial court’s judgment.

Property Division. After classifying the property of a divorcing couple, a trial court is charged with equitably dividing the marital property. An equitable division of property is not necessarily an equal one. The division of marital property is not a mechanical process, but rather is guided by the factors in Tennessee Code Annotated § 36-4-121(c).

Tennessee Code Annotated § 36-4-121(c) requires a trial court to consider the following factors in making its division of marital property:

(1) The duration of the marriage;
(2) The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
(3) The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
(4) The relative ability of each party for future acquisitions of capital assets and income;
(5)(A) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
(B) For purposes of this subdivision (c)(5), dissipation of assets means wasteful expenditures which reduce the marital property available for equitable distributions and which are made for a purpose contrary to the marriage either before or after a complaint for divorce or legal separation has been filed.
(6) The value of the separate property of each party;
(7) The estate of each party at the time of the marriage;
(8) The economic circumstances of each party at the time the division of property is to become effective;
(9) The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
(10) The amount of social security benefits available to each spouse; and
(11) Such other factors as are necessary to consider the equities between the parties.

After reviewing the record, the Court concluded:

Our Supreme Court has approved the concept of using the division of marital property to help meet a disadvantaged spouse’s financial needs. While the trial court in the present case expressly stated that it was not awarding alimony in solido, the court made clear that it was awarding “Wife a larger share of the property because the Husband cannot afford to pay her need.” The trial court found that Wife needed $2,300 per month and that Husband could afford to pay only $1,500 per month. Under these circumstances, we agree with the strategy adopted by the trial court of awarding Wife a greater share of the marital property. We disagree, however, with the extreme disproportion in the percentages awarded to the two spouses. We hereby modify the trial court’s property division to award the remaining value of the 401(k) to Husband. Wife shall retain all of the equity in the marital home.

Alimony. Husband argued Wife had no need for alimony and, alternatively, that the trial court erred in awarding alimony in futuro instead of transitional alimony.

The Court first modified the amount of alimony, writing:

Husband listed a net monthly income of $4,982. Husband’s child support obligation was set at $1,357 per month. Because Husband did not have the ability to pay the full amount of Wife’s need, the trial court set alimony at $1,500 per month. Subtracting the child support and alimony payments (totaling $2,857) from Husband’s net income yields a figure of approximately $2,125 to cover his monthly living expenses. Under the circumstances, the evidence preponderates against the trial court’s finding that Husband had the ability to pay $1,500 per month. We, therefore, modify the monthly amount to $1,200.

The Court then modified the type of alimony from alimony in futuro to transitional alimony.

Although the trial court concluded that Wife could not do better than earning about $5,000 per year, we find no evidence to support this finding. Wife completed three years of college and has had a real estate license; while she will need some time to transition into the work force, we do not find any support for the trial court’s determination that Wife will be unable to secure more than minimal earnings. Wife herself testified that she was hopeful about her prospects in developing a cosmetics business. Under the circumstances, we conclude that the trial court erred in awarding alimony in futuro and that an award of transitional alimony is more appropriate.

The Court modified the alimony award to provide for transitional alimony in the amount of $1,200.00 a month for a period of five years.

Hatfield v. Hatfield (Tennessee Court of Appeals, Middle Section, February 7, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Alimony/Spousal Support, Divorce, Property Division | Tags: Alimony, Divorce, Family law, Knoxville, Property Division

Posted by: koherston | April 4, 2013

Nashville Child Support Reduction Reversed: Uria v. Uria

Knoxville child support attorneys Facts: The parties divorced after five years of marriage. They have two children. After mediation, the parties filed an agreed parenting plan to the trial court that determined Father’s child support obligation to be $667 per month. Shortly thereafter, Mother filed a motion that resulted in the trial court ordering Father to appear at the next hearing with documentary evidence of his income and other financial records. Father did not appear as ordered. Based on the proof submitted by Mother at the hearing, the trial court entered an order establishing Father’s child support at $1126 per month.

Five years later, Father petitioned to reduce his child support obligation. The trial court found Father’s child support should be reduced to $543 per month but determined that Father owed a child support arrearage of $57,938. Father conceded there was no legal basis to modify the prior child support order prior to the filing of his petition.

Father filed a Rule 60 motion to amend the final divorce decree entered six years earlier to “properly calculate” his child support so “new judgments” could issue on the child support arrearage.

Mother argued that Father’s motion was not a timely motion to amend because it was filed more than six years after the divorce decree. She argued it was not “made within a reasonable time” to the extent that the motion was construed as one for relief under Rule 60.02 of the Tennessee Rules of Civil Procedure.

The trial court found the final divorce decree was based on inaccurate information about Father’s income, granted Father’s motion, and recalculated Father’s child support obligation, which reduced the arrearage owed by Father to $15,962. Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

Rule 60.02 of the Tennessee Rules of Civil Procedure provides that “[o]n motion and upon such terms as are just,” a court may relieve a party from a final order for the following reasons:

(1) mistake, inadvertence, surprise or excusable neglect;

(2) fraud . . . misrepresentation, or other misconduct of an adverse party;

(3) the judgment is void;

(4) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that a judgment should have prospective application; or

(5) any other reason justifying relief from the operation of the judgment.

After reviewing the appellate record, the Court stated:

[E]ven assuming that the evidence presented at the final divorce hearing was inaccurate, at most, it would constitute a mistake, and this fact alone would not justify setting aside the order more than six years later, considering the circumstances of this case. Father knew, shortly after the entry of the [final] divorce decree, that he was ordered to pay $1,126 per month in child support rather than $667, as the parties had agreed during mediation. Besides the fact that Father was mailed a copy of the divorce decree, the record reveals that Father and Mother both appeared at a hearing before the trial court on June 29, 2005, on Mother’s petition for contempt, and thereafter, the trial court entered an order dismissing the issue of contempt and providing that Father would pay $1,126 per month as current support and $400 per month toward his arrearage, as provided in the divorce decree. Father’s attorney also acknowledged at the hearing on the Rule 60 Motion that Father had notice of the amount of his child support obligation because of a wage assignment in the amount of $1,126. Yet he did not seek to set aside the 2005 order until June 20, 2011. In the case of a mistake, and, even in cases involving fraud or misconduct of an adverse party, a motion to set aside must be filed not more than one year after the judgment in question was entered. Clearly, Father’s motion to set aside was not made within a reasonable time under the circumstances of this case. And, a claim cannot be asserted under Rule 60.02(5) simply because relief under another provision is time-barred.

The Court reversed the trial court’s decision to modify the portion of the final divorce decree regarding child support and its recalculation and reduction of the arrearage owed by Father. The original provisions of the divorce decree were reinstated.

Uria v. Uria (Tennessee Court of Appeals, Middle Section, February 6, 2013).

Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.

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Posted in Child Support, Procedure | Tags: Child support, Civil Procedure, Divorce, Family law, Knoxville Tennessee, Tennessee

Herston on Tennessee Family Law | Knoxville Divorce, Child Custody, Child Support, Alimony and Matrimonial Law Attorney

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