Facts: Mother and Father are the never-married parents of Child. Their agreed parenting plan provided for equal parenting time via an alternating weekly schedule. Mother was designated the primary residential parent.

Three years later, Father sought to modify the parenting plan such that he would be named the primary residential parent with sole decision-making authority. He alleged that, among other things, Mother had changed residences multiple times, had caused several judgments to be entered against her for unpaid rent, and was dating a convicted felon.

Mother also sought to modify the parenting plan by reducing Father’s parenting time to alternating weekends and two non-consecutive weeks in the summer. She alleged that, among other things, Father harassed her and exhibited verbally abusive behavior and had warrants issued against him for unpaid rent and driving on a revoked license.

After a trial, the trial court found that although there were material changes in circumstance affecting Child, such as the parties’ difficulty cooperating while Child attended daycare and Child’s maturation from 2 to 5 years old, these changes did not warrant changing the primary residential parent from Mother to Father but did warrant changing the parenting schedule. The trial court found it was in Child’s best interest to reduce Father’s day-to-day parenting time to alternating weekends when school was in session and inverting the schedule during the summer break so Mother’s parenting time would occur on alternating weekends.

Father appealed.

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

In any proceeding requiring a trial court to make a child custody determination regarding a minor child, the court must make that determination on the basis of the best interest of the child. Upon a petition to modify custody from one parent to the other parent, the threshold issue is whether a material change in circumstances has occurred after the initial custody determination. Upon a trial court’s finding that a material change in circumstance has occurred, it must then be determined whether the modification is in the child’s best interests.

The standard a petitioning parent must meet to prove a material change in circumstance sufficient to consider whether changing custody is in the best interest of the child is set forth in Tennessee Code § 36-6-101(a)(2)(B). This is considered a more stringent standard.

In comparison, the standard a petitioning parent must meet to prove a material change in circumstance sufficient to consider whether changing the parenting schedule is in the best interest of the child is set forth in Tennessee Code § 36-6-101(a)(2)(C). This is considered a very low threshold.

In this case, Father argued Mother’s cohabitation with another man — “M.C.” — constituted a material change in circumstance sufficient to change custody. Father noted in particular that Mother’s paramour is a convicted felon who had served jail sentences for an arson conviction and violation of an order of protection obtained by his ex-wife.

After reviewing the record, the Court commented:

At trial, Mother acknowledged that M.C. had served jail sentences in the past for an arson conviction and violation of an order of protection obtained by his ex-wife in 2010. She asserted, however, that M.C. was a “good man” who was “great” with her children and had never threatened harm to her or her children. Father did not present any testimony or evidence to indicate that M.C. had ever endangered the Child or anyone living with Mother. Although at the close of trial, the court expressed concern regarding the presence of M.C. in Mother’s home, the court found that Father had not demonstrated any risk of harm to the Child due to M.C.’s presence….

We conclude that the evidence does not preponderate against the trial court’s finding that although a material change in circumstance warranting a modification of the residential co-parenting schedule had occurred, it did not rise to the level required for a change in the primary residential parent.

After also finding no error in the trial court’s assessment of Child’s best interest, the trial court’s judgment was affirmed.

K.O.’s Comment: One of the requirements for a material change in circumstance is that the change affect the child’s well-being in a meaningful way. This is where Father’s argument was found lacking. It’s not enough to have “dirt” on the opposing party. This case reminds us there must be a causal connection between the “dirt” and some resulting impact to the child.

In re Jesslyn C. (Tennessee Court of Appeals, Eastern Section, March 31, 2015).

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Posted by: koherston | April 24, 2015

Photo of the Week: Morning Buck

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Posted by: koherston | April 22, 2015

Mothers More Likely to Owe Child Support than Fathers

This recent story on National Public Radio might be of interest to readers of this blog.

Who Fails To Pay Child Support? Moms, At A Higher Rate Than Dads

UNIDENTIFIED WOMAN #1: Fifty-two.

UNIDENTIFIED WOMAN #2: 11:52.

UNIDENTIFIED MAN: Twenty-five.

UNIDENTIFIED WOMAN #3: 6.115.

RACHEL MARTIN, HOST:

Time for some number crunching from our data expert Mona Chalabi from fivethirtyeight.com. And she has given us this number of the week.

UNIDENTIFIED WOMAN #1: $14.3 billion.

MARTIN: That is the total amount of unpaid child support in the United States in the year 2011. Mona Chalabi joins us from our studios in New York to unpack this number. Hey, Mona.

MONA CHALABI: Hi, Rachel.

MARTIN: So that’s a huge amount of unpaid child support. What do we know about how many parents are affected, and who are they?

CHALABI: Well, we actually know quite a bit. So the spreadsheet I’m looking at here comes from the Census Bureau in 2011. That’s the most recent year that we have. And they provide a pretty specific definition of custodial parents. Those are parents that are taking care of their kids while the other parent lives someplace else.

MARTIN: OK.

CHALABI: And we can see which of those parents have been awarded child support, and whether they’re actually getting the payments that they’re due. And it also tells us – and this might actually be more important – about the race, marital status and gender of those parents. And I started off by looking at gender because a reader had actually sent me an email saying that he thought moms are worse at paying child support than dads.

MARTIN: Moms were worse. That kind of flies in the face of what we presume to be a common understanding of this, right?

CHALABI: Yeah, it’s a pretty surprising assumption. And what’s even more surprising is the fact that this reader was right.

MARTIN: He was right. So what evidence did you find to support that?

CHALABI: Yeah. I was surprised too. So in 2011, we found that 32 percent of custodial fathers didn’t receive any of the child support that had been awarded to them compared to 25 percent of custodial moms. Now the first and most obvious thing to say about all of this is that there are way more custodial moms in America than custodial dads. They actually outnumber them 5 to 1. And on top of that, moms are also more likely than dads to get awarded child support. But still…

MARTIN: In the first place.

CHALABI: Exactly. Yeah. But still, the data shows that moms are more likely than dads to get at least some of the child support that they’re due. It’s not a huge difference in percentage terms, but it’s still kind of counterintuitive. At least it was to me.

MARTIN: Yeah. So why is this happening? Any guesses or evidence-based theories to explain why dads are getting short shrift?

CHALABI: So we don’t really know because the Census Bureau doesn’t kind of provide concrete reasons for that. But the data that they do have kind of suggests some possible explanations we can put out there. The first of which is that custodial dads have a much higher average household income than custodial moms. So their average household income is $52,000 compared to about $26,000 for custodial moms. And they’re half as likely to living in poverty. So one possible explanation we can draw from that is that these dads that have a higher income might be less likely to be pursuing child-support payments from the noncustodial mothers.

One other possible theory here comes from a lady called Cynthia Osborne, who I spoke to earlier this week. She’s the director of the Child and Family Research partnership at the University of Texas at Austin. And she kind of suggested to me that for a father to become the custodial parent, very often the mother might not be in a particularly good position. She might be struggling to find work. She might have drug problems. There can be all kind of issues there. And so she suggested that that might play into the ability of those noncustodial mothers to actually make those child-support payments. And that might explain what they’re basically worse at paying up for custodial dads.

MARTIN: So did you notice any other factors? I mean, we’ve talked about gender. But anything else that you discovered that might affect the chances of getting child support?

CHALABI: Yeah. The data looks like marital status appears to have a little bit of an effect here, not only on the chances of being awarded child support in the first place, but also eventually receiving those payments. So we saw in the data that custodial moms and custodial dads who have never been married are much less likely to get any of the payments they’re due. I don’t think this is about kind of like being on good terms or whatever. The fact that divorcees are more likely to receive their child-support payments than people who have never been married could be because of all kinds of other factors. It could be because divorcees are more likely to be older or because they’re more likely to be wealthier. We just don’t know. All we can see is that kind of marital status difference.

MARTIN: Mona Chalabi with fivethirtyeight.com talking about our number of the week. Thanks so much, Mona.

CHALABI: Thanks, Rachel.

Source: Who Fails To Pay Child Support? Moms, At A Higher Rate Than Dads (National Public Radio, March 1, 2015).

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

Facts: Husband and Wife divorced in 1998. Wife was awarded alimony in futuro of $3500 per month until her death or remarriage.

Five years later, the trial court reduced Husband’s monthly alimony obligation to $2870 because of a decline in Husband’s income.

Years later, Husband petitioned to modify his alimony obligation on the grounds that he had recently retired.

Relying solely on Husband’s post-retirement decrease in income, the trial court modified Husband’s alimony obligation to $1035 per month. The trial court did not make any findings regarding Husband’s expenses, Wife’s income, Wife’s expenses, or any other factors relevant to setting an alimony obligation.

Wife appealed.

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

Tennessee Code § 36-5-121(f)(1) says alimony in futuro, a.k.a. permanent alimony, is appropriate when one spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the 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.

An award of alimony in futuro remains in the court’s control for the duration of the award and may be increased, decreased, terminated, extended, or otherwise modified upon a showing of substantial and material change in circumstances. The party seeking modification of the alimony award bears the burden of proving that a substantial and material change in circumstances has occurred.

When an obligor’s retirement is objectively reasonable, it constitutes a substantial and material change in circumstances — irrespective of whether the retirement was foreseeable or voluntary — so as to permit modification of the support obligation. However, it is equally clear that an obligor cannot merely utter the word “retirement” and expect an automatic finding of a substantial and material change in circumstances. The trial court must examine the totality of the circumstances surrounding the retirement to ensure it is objectively reasonable.

Even when an obligor is able to establish that a retirement is objectively reasonable, and therefore that it constitutes a substantial and material change in circumstances, the obligor is not necessarily entitled to an automatic reduction or termination of his or her support obligations. The alimony statute provides that an award of alimony in futuro “may” be modified upon a showing of a substantial and material change in circumstances. As evidenced by its permissive language, the statute permitting modification of support awards contemplates that a trial court has no duty to reduce or terminate an award merely because it finds a substantial and material change in circumstances. Instead, the change in conditions resulting from retirement merely allows the obligor the opportunity to demonstrate that reduction or termination of the award is appropriate. The actual modification of the award, if any, is addressed to the trial court’s discretion after considering the relevant factors listed in Tennessee Code § 36-5-121(i). Although the statute lists numerous factors for consideration, the two most important considerations in modifying a spousal support award are the financial ability of the obligor to provide for the support and the financial need of the party receiving the support.

After reviewing the record, the Court concluded:

The trial court applied an incorrect legal standard, and therefore abused its discretion, by focusing solely on Husband’s income. Deciding whether an obligor has the ability to provide spousal support requires consideration of more than the obligor’s income. A decrease in income should not be viewed in a vacuum. To the contrary, we must consider the obligor’s “ability to pay” the alimony obligation, which can be impacted by a variety of factors. Income is but one of the factors to be considered. The obligor’s expenses are another important factor for consideration. Moreover, the trial court should carefully consider the relevant factors of Tennessee Code Annotated § 36-5-121(i) in deciding by what amount, if any, the award should be modified. The need of the receiving spouse cannot be overlooked; it is an important consideration in modification cases.

[W]e find that Husband failed to meet his burden of demonstrating that modification of his alimony obligation was appropriate. Even though Husband experienced a decrease in income due to his retirement, he was still receiving approximately $8,166 per month from social security and retirement benefits. His retirement funds were valued at around $1.2 million. Husband testified that he decided how much to withdraw from his retirement accounts by using online formulas and annuity tables based on his life expectancy. He acknowledged that if he continued his current level of withdrawals from his retirement accounts (paying Wife’s existing level of alimony), his retirement funds would last until his mid-eighties, which corresponds to his life expectancy. He added that the value of his portfolio could change based on the stock market.

Despite Husband’s burden of proof, he did not produce any evidence of his monthly expenses in an effort to demonstrate an inability to pay his current level of alimony. In fact, the limited evidence regarding Husband’s expenses showed that his current monthly income enabled him to pay Wife’s alimony and all of his expenses without going into debt. Husband was paying the bulk of the household expenses for himself and his new wife, who was 49 years old and had accepted a voluntary buyout that enabled her to retire during the same month as Husband. He testified that his new wife was paying about 40 percent of the household bills. Husband’s testimony indicated that his monthly expenses included considerable discretionary spending. He was voluntarily paying off his daughter’s student loan, which totaled $20,000, and he said he had always paid “everything” for his children, including “tuition, clothes, cars, health insurance, education, whatever it is, plane tickets, I paid for it….”

Husband’s lifestyle indicated that he had no trouble paying for luxuries in addition to meeting his obligations. Husband testified that he had been traveling to France every year “for years,” and he rents an apartment there because it doesn’t cost “much.” When asked about his deposition testimony that he spends $6,000 per year on travel, Husband said, “If I did, that’s fine. I mean, I wouldn’t know. That’s a possibility.” Our review of the evidence presented leads us to conclude that Husband still has the financial ability to pay Wife’s current level of alimony in the sum of $2,870 per month….

In sum, we hold that Husband’s retirement constituted a substantial and material change in circumstances, but Husband failed to prove that the change in circumstances significantly diminished his financial ability to pay alimony or Wife’s need for it.

Accordingly, the trial court’s judgment was reversed. Wife was also awarded her attorney’s fees on appeal.

Malkin v. Malkin (Tennessee Court of Appeals, Western Section, March 26, 2015).

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

Posted by: koherston | April 17, 2015

Photo of the Week: River Otter Eating Trout

KOH_4781-3

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Facts: Mother and Father are the unmarried parents of Child. Two years after Child’s birth, they separated.

After their separation, Mother allowed Father to visit Child at the home of Child’s paternal grandmother until such time as Mother grew concerned for Child’s safety because of a lack of stability in the paternal grandmother’s home.

For two years thereafter, Father had no visitation with Child.

not good enoughIn July 2012, Father filed a petition for visitation. The following month, Mother (who has since remarried) and Stepfather petitioned to terminate Father’s parental rights on the grounds of abandonment by willful failure to visit. The petition asked that Stepfather be permitted to adopt Child.

It was undisputed that Father had no visitation with Child in the four months preceding the filing of the petition to terminate Father’s parental rights. Father argued the failure to visit was not willful because Father filed a petition for visitation he was actively pursuing at the time the termination petition was filed.

The trial court found Father’s visitation petition showed his intent to establish a relationship with Child. The trial court further found that Mother frustrated Father’s efforts to visit Child. For these reasons, the trial court concluded that Mother and Stepfather failed to establish by clear and convincing evidence grounds for termination of Father’s parental rights.

Mother and Stepfather appealed.

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

The issue is whether Father’s visitation petition was sufficient to show he did not abandon Child by willfully failing to visit.

Tennessee Code § 36-1-102(1)(E) provides that grounds for terminating a parent’s parental rights includes abandonment by the willful failure to visit or engage in more than token visitation with the child for a period of four consecutive months immediately preceding the filing of the petition to terminate parental rights.

The Tennessee Supreme Court has ruled that even when a parent has not visited a child in the relevant four-month period, that fact alone is insufficient to support a finding of willful failure to visit where visitation had been thwarted by the other party and the parent is actively pursuing legal proceedings to regain custody or visitation with the child.

In subsequent cases, the Court of Appeals refined this principle by holding there was a willful failure to visit when the parent had filed pending litigation but was not actively pursuing it. The Court of Appeals held in other cases that there was a willful failure to visit even when the other parent had pending litigation seeking visitation when there was no evidence the custodial parent spurned the other parent’s efforts to visit the child.

Additional cases further clarified that willful failure to visit can be found when the other parent has pending litigation seeking visitation when the child’s custodial parent discouraged the other parent from visiting the child and was, to some extent, responsible for the other parent’s failure to visit during the relevant four-month period.

After discussing these previous rulings in detail, the Court reasoned:

First, there is no evidence in this case that Father was thwarted in any effort to visit the child by Mother. Here, Father admitted that other than one ill-advised drive-by to Mother’s home, he made no attempts to see the child after Mother stopped taking the child to paternal grandparents’ home…. Indeed, the record shows that even those few visits that Father did have with the child after the parties’ separation were completely facilitated by Mother, who drove the child to Father. Simply put, nothing in the record indicates that prior to the filing of his visitation petition did Father ever take any affirmative action to visit with child. Thus, there can be no finding that Mother thwarted Father’s non-existent efforts….

Instead, Father placed all the onus to schedule and facilitate visitation on Mother and even Stepfather. Repeatedly at trial, Father’s counsel emphasized that Mother made no effort to seek out Father to have visitation with the child…. While Mother is not entitled to thwart an effort by Father to have a relationship with the child, it was certainly not her burden to ensure that Father exercised visitation with the child.

[T]here was no valid excuse for Father’s considerable delay in seeking visitation with the child…. Father simply made no effort to maintain any relationship with the child until the filing of his visitation petition, over two years since his last visit with the child.

Although Father testified that his finances prevented him filing a visitation petition earlier, nothing in the record indicates that he was prevented from simply asking for visitation from Mother. Father admitted that he knew the address of Mother’s home; indeed, he drove by Mother’s neighborhood hoping to see Mother and the child in early 2011, far before the termination petition was filed. Moreover, nothing in the record indicates that Mother denied Father any requested visitation; instead, Father simply never requested it…. [U]ntil he filed his visitation petition, Father’s actions evinced his intent not to establish a relationship with the child. Under these circumstances, we must conclude that Father’s visitation petition was merely a token effort at establishing visitation…. Thus, the trial court erred in finding that [Mother and Stepfather] failed to prove that Father willfully failed to visit with the child….

Accordingly, the trial court was reversed and the case remanded back to the trial court for the second part of the termination of parental rights analysis, i.e., whether termination is in Child’s best interest.

In re Brookelyn W. (Tennessee Court of Appeals, Western Section, March 24, 2015).

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

Facts: Mother and Father are the unmarried parents of Child. After Mother and Father separated, the trial court had to resolve their disputes regarding child custody, visitation, and child support.

During the course of their relationship, Mother and Father lived both together and apart. During one of their periods of separation, the trial court ordered Father to pay child support of $95 per week. Shortly thereafter, Mother and Father reconciled and lived together once again. They separated again several years later.

In her pretrial pleadings, Mother sought retroactive child support and birth expenses from Father.

At trial, Father’s counsel attempted to introduce evidence of Father’s past payments of child support to establish that there was no child support arrearage. Mother’s counsel objected and stated that retroactive child support was not at issue.

Thereafter, neither party introduced evidence on the subject of child support or medical costs associated with Child’s birth.

Accordingly, the trial court did not award retroactive child support to Mother.

Mother appealed.

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

Although Mother affirmatively waived in open court any claim for a retroactive child support or costs associated with the birth of Child, she argued on appeal that she cannot waive retroactive child support, relying on the well-established principle that a custodial parent may not waive the minor child’s right of support.

Tennessee Code § 36-2-311 requires a trial court to determine retroactive child support and liability for Mother’s maternity costs.

It is a well-settled principle that parents must, as a general rule, support their children until they reach the age of majority. A parent’s obligation to support, as well as the child’s right to support, exist regardless of whether there is a court order. The obligation to support a child exists from the child’s birth, and upon entry of an order establishing paternity, the father is liable for support back to that date.

An award for retroactive child support is generally considered to have two purposes: to benefit the parties’ child and to reimburse the custodial parent for contributing more than that parent’s fair share to the child’s support.

The duty of support cannot be permanently bargained away. Tennessee courts have repeatedly found that agreements, incorporated in court decrees or otherwise, that relieve a natural or adoptive parent of his or her obligation to provide child support are void as against public policy. In other words, Tennessee law clearly establishes that a parent cannot wave a child’s right of support.

In this case, however, the Court concluded the facts presented a narrow exception to this well-settled legal principle. The Court explained:

In the present case, the parties did not agree that Father’s arrears, if any, would be forgiven. To the contrary, Mother filed a petition seeking retroactive child support and reasonable expenses for the birth of the child, and Mother was afforded the opportunity to present evidence regarding these claims. However, when Father attempted to introduce evidence to prove that he had fully paid his support obligations, Mother objected to the relevancy of such evidence, and affirmatively represented to the judge in open court that there was no issue with back child support. Accordingly, the trial court ruled the evidence irrelevant. Moreover, not only was Father precluded from introducing proof that he had paid child support, Mother presented no evidence to show an arrearage or any costs she incurred associated with the birth of the child. Furthermore, when the judge ruled from the bench, he asked counsel if he had failed to address any issue, and Mother’s counsel did not ask the court to rule on her claim for back child support or costs associated with the birth. As a consequence, the trial court did not rule on the non-issues.

Based on the above, we have concluded that Mother had the opportunity to present proof at trial in support of her claim, but she failed to introduce any evidence from which the court could find that any support was owed. Moreover, because she objected to Father’s attempt to introduce evidence that he had paid his child support obligations, it would cause an injustice for this court to allow her to now claim that an arrearage is owed. Additionally, Mother announced to the trial court that there was no issue concerning back child support, and, therefore, she did not afford the trial court the opportunity to rule on the issue; accordingly, the issue of back child support cannot be raised for the first time on appeal.

Accordingly, the trial court’s ruling was affirmed.

K.O.’s Comment: To clarify, retroactive child support cannot be waived unless it is waived, in which case it can be waived and is, in fact, waived. Any questions? No? Good.

In re Jayden C. (Tennessee Court of Appeals, Middle Section, March 23, 2015).

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

Posted by: koherston | April 10, 2015

Photo of the Week: Owl with Dinner

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Facts: Mother and Father are the parents of Child.

Prior to Child’s birth, Father was arrested and pleaded guilty to possession of cocaine for resale. Following Child’s birth, Father was arrested again and convicted of selling ecstasy. Father went to prison. Over the years, Father had little or no contact with Child.

Child spent most of his life in the custody of Mother and Grandmother. Because Mother lived a “party” lifestyle, much of the responsibility for raising Child fell upon Grandmother.

Years later, Mother entered an agreed order providing for grandparent visitation every Saturday evening.

Eventually, Father petitioned for custody of Child alleging, among other things, that Mother was subjecting Child to substandard living conditions and abusing prescription pain pills. While that matter was pending, Father was arrested yet again and charged with being a felon in possession of firearms and selling synthetic marijuana.

While Father’s most recent criminal charges were pending, Mother and Father reconciled and resumed living together.

Grandmother responded by petitioning to intervene in the pending custody dispute between Father and Mother.

A second child was then born to Mother and Father. They entered an agreed parenting plan providing for equal parenting time with their second child.

At trial, Grandmother testified the only potential danger Child would face if left in Mother’s custody would be exposure to Father.

Because this was a custody between a non-parent and parents, the trial court ruled Grandmother must show by clear and convincing evidence that each of the parents posed a risk of substantial harm to Child in order for Grandmother to receive custody of Child.

The trial court found Father posed a risk of substantial harm to Child the cause of his criminal background and the pending criminal charges. As to Mother, however, the trial court found no evidence that Child would be exposed to substantial harm if placed in her custody.

Grandmother lost the custody battle but retained grandparent visitation rights under the prior order.

Grandmother appealed.

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

A custody dispute between a parent and non-parent must begin with a recognition of the parent’s fundamental right, based in both the federal and State constitutions, to the care, custody, and control of his or her child. In a custody dispute with a non-parent, therefore, the parent is generally afforded a presumption of superior parental rights.

In a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a general “best interest of the child” evaluation in making a determination of custody.

In applying this test, the burden rests on the non-parent to demonstrate through clear and convincing evidence that the child will be exposed to substantial harm if placed in the custody of the biological parent.

Tennessee courts have refused to define the precise circumstances that constitute a risk of substantial harm to the child, finding that such circumstances are not amenable to precise definition because of the variability of human conduct. The circumstances, however, must connote a real hazard or danger that is not minor, trivial, or insignificant and the harm must be more than a theoretical possibility. An inquiry into a person’s fitness as a parent has been utilized to determine whether they present a substantial risk of harm. To determine a parent’s fitness, Tennessee courts may consider their past conduct to aid in assessing their current parenting skills and whether they are capable of having custody of the child.

Accordingly, Grandmother had the burden of demonstrating, through clear and convincing evidence, that Mother and Father each posed a substantial risk of harm to Child before the trial court could consider whether granting Grandmother custody was in Child’s best interest.

Grandmother argued the trial court erred in granting custody of Child to Mother where Mother was residing with Father — whom the trial court found posed a substantial risk of harm to Child. The central thrust of this argument is that the risk of substantial harm posed by Father must be imputed to Mother because the two lived together, thereby allowing Father contact with Child.

After reviewing the record, the Court concluded:

The trial court considered Father’s criminal background in determining that Mother did not pose a substantial risk of harm to [Child]. The court explicitly stated that “even considering [Father’s] criminal history and pending charges, there is no evidence that [Child] will be exposed to substantial harm if placed in the custody of [Mother].” In making this statement, the court seems to have credited Mother’s testimony that she would take her children and leave if Father were to endanger them by engaging in illegal behavior. In support of its decision, the court also found that Mother had matured significantly between [Child]’s birth and the time of the hearing and had made adjustments in her life.

The facts . . . do not clearly and convincingly establish that Mother poses a risk of substantial harm to the child. Nothing in the record before us suggests that the trial court abused its discretion in crediting Mother’s testimony. Mother lived with Father in the sixteen months before trial and actively participated in raising the couple’s second child. She pledged to protect [Child] from any danger arising from Father’s past criminal behavior. Although Grandmother was apparently instrumental in [Child]’s upbringing, such a circumstance does not warrant removing [Child] from Mother’s custody.

Accordingly, the trial court was affirmed.

K.O.’s Comment: Tennessee Code § 36-6-106(a)(12) requires trial courts to consider “[t]he character and behavior of any person who resides in or frequents the home of a parent and such person’s interactions with the child” when determining a child’s best interest. Although it is appropriate to consider the people with whom a parent lives in deciding whether the parent presents a risk of substantial harm to a child, this case illustrates that factor alone is not determinative of the issue.

In re Caleb B. (Tennessee Court of Appeals, Middle Section, March 19, 2015).

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

Posted by: koherston | April 6, 2015

Tennessee Supreme Court Deletes Unpublished Opinion Rule

Knoxville divorce lawyersPrior to March 4, 2015, Tennessee Supreme Court Rule 4(H) required that lawyers citing unpublished opinions must attach a copy of the unpublished opinion to any pleading in which it is cited, thereby furnishing a paper copy to both the court and all other parties. The Rule further required that copies of unpublished opinions must contain a notation indicating whether an application for permission to appeal had been filed and, if so, the date and disposition of the application.

In an order entered March 4, 2015, the Tennessee Supreme Court deleted the following provisions from Rule 4:

(H)(1) A copy of any unpublished opinion cited shall be furnished to the court and all parties by attaching it to the document in which it is cited.

(2) The title page of the copies and any citation to the unpublished decision shall contain a notation indicating whether or not an application for permission to appeal has been filed and, if filed, the date and disposition of the application. Where appropriate, the notation shall indicate that an application has been filed and is currently pending.

With those sections now deleted from Rule 4, lawyers in both trial courts and on appeal are no longer tasked with furnishing paper copies of unpublished opinions to the court and opposing parties. This change reflects the ease with which unpublished opinions can now be found on the Internet.

The amended rule went into effect on March 4, 2015. Trial lawyers (and trees) everywhere are rejoicing.

In re Rule 4(H) (Tennessee Supreme Court, March 4, 2015).

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

Posted by: koherston | April 3, 2015

Photo of the Week: April Flowers

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Posted by: koherston | April 1, 2015

Getting Divorced? Eight Things You Must Know About Taxes

Knoxville family law and divorce attorneysWith the federal income tax filing deadline just two weeks away, this recent article by Emma Johnson in Forbes might be of interest to readers of this blog.

Getting Divorced? Eight Things You Must Know About Taxes

Getting divorced? You have a lot going on. In fact, when you divorce, nearly every vertical of your life changes — including your taxes.

If your marriage is ending, address these tax concerns now. Below are the nuts and bolts of divorce and tax law. But if you are currently negotiating your split, or have a open dialogue with your ex, sit down with a tax professional to explore arrangements that could reduce the tax burden for both of you.

Filing status. If you were still legally married on Dec. 31, 2014, you can still file jointly with your soon-to-be ex. If you divorced during 2014 and you have agreed with your ex to claim any children as dependents, or they lived with you for more than half the year, you can file as single head of household, which allows you a bigger tax break.

Who claims the kids. If the kids lived with you more than half the year, you claim them. However, regardless of your custody arrangement, you and your ex can agree out of court who claims the children as dependents. If the higher-earner makes too much (if they qualify to pay the Alternative Minimum Tax), he or she can allow the other parent to claim the kids, at $3,950 per child for tax year 2014.

Medical expenses. Typically, the parent who pays for the child’s medical expenses can claim those bills.

Alimony. Don’t get too excited if you win alimony. You’re the one who has to pay taxes on that income. If you’re the one paying your ex alimony, that is a tax deduction for you. These tax implications are only applicable unless they are detailed in the signed divorce agreement.

Child support. The payor pays taxes on this income.

401(k) investments. If you withdraw funds from your 401(k) and give them to your ex, you face early withdrawal penalties and that sum is considered taxable income. However if you transfer that money under a Qualified Domestic Relations Order (QDRO), both of you avoid this tax trap.

Capital gains on a home. Single filers can shelter $250,000 profits on the sale of a primary residence, while married couples, filing-jointly, can avoid taxes on up to $500,000. If you stand to profit above either of these thresholds, consider timing your divorce and the home sale accordingly. Similarly, those tax breaks only apply if you have lived in the home at least two of the past five years.

Mortgage interest. The spouse who gets ownership the house in the split also claims the mortgage interest deductions — regardless of who lives in the home or who makes the mortgage payments. If one spouse lives there but both continue to jointly own it, then both parties split the mortgage interest deduction.

Source: Getting Divorced? Eight Things You Must Know About Taxes (Forbes, January 19, 2015).

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

Facts: Mother and Father, the parents of Son, were divorced in 2001. After the divorce, Father moved to Memphis. The parenting plan provided Son would reside with Mother in Fairview, Tennessee during the school year and with Father in Memphis for eight weeks in the summer. Mother was designated the primary residential parent.

Knoxville divorce lawyersTwelve years later, Father sought to be designated the primary residential parent so Son could live with him in Memphis during the school year, attend Memphis University School (“MUS”), and swim for its team. Over the years, Son had become a nationally-ranked swimmer with a demanding practice schedule. Because of the time commitment required to excel at the sport, Son’s social circle was composed almost entirely of people who were involved in swimming. Son’s current high school did not have a swimming team, and Son’s opportunities to form friendships with his classmates were limited as a result.

The trial court found a material change in circumstance had occurred based on Son’s swimming expertise and the exceptional amount of time he devoted to training coupled with its impact on his social development. The trial court also found it was in Son’s best interest to designate Father as the primary residential parent. While most of the best interest factors favored neither parent, the trial court was greatly impressed by the testimony it heard from the 15-year-old Son about his desire to live with Father and attend MUS. The trial court afforded great weight to Son’s expressed preference, finding it was genuine, long-standing, and based on good reasons.

The trial court designated Father as the primary residential parent and reversed the residential parenting schedule so Son would spin the school year with Father and the summer with Mother.

Mother appealed.

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

A petition to change the primary residential parent requires a two-step analysis, and the petitioner bears the burden of proof in each step. First, the petitioner must prove by a preponderance of the evidence that a material change of circumstance has occurred. Second, the petitioner must show that a change of custody is in the child’s best interest.

Material Change. There is no bright line rule for determining when a change in circumstance is material enough to warrant changing an existing custody arrangement. Instead, when making this determination, courts should consider (1) whether a change has occurred after the entry of the order sought to be modified, (2) whether a change was not known or reasonably anticipated when the order was entered, and (3) whether a change is one that affects a child’s well-being in a meaningful way. Such a change includes circumstances that make the parenting plan no longer in the best interests of the child.

Mother argued the trial court erred in finding a material change of circumstance. After reviewing the record, the Court disagreed, explaining:

The trial court found that a material change in circumstance had occurred based on Son’s athletic development and its impact on his social development. The evidence does not preponderate against this finding. While both parties knew that Son was interested in swimming [when the last parenting plan was entered], neither party claimed it was reasonable to anticipate the degree to which he would excel in and become devoted to the sport at that time. The testimony at the evidentiary hearing demonstrated that Son practices for swimming nine times per week for several hours at a time. His close friendships are with others who share his devotion to swimming as well as this demanding schedule. Indeed, swimming has become the basis for all of Son’s extracurricular activities and social relationships. His current school, Fairview High School, does not have a swimming team, and Son has not developed a circle of friends there. Both Son and Mother testified that Son spent most of his time swimming and did not interact much with friends in Fairview. Son has developed a circle of friends who attend MUS and are involved in swimming, and he has developed a very strong relationship with his stepmother, who has a background in swimming.

Based on the foregoing, the Court concluded the evidence does not preponderate against the trial court’s finding and, therefore, the trial court’s determination that a material change in circumstance occurred was affirmed.

Child’s Preference. Mother also argued the trial court erred by allowing Son’s preference to control the outcome of the best interests determination.

The preference of a child 12 years or older is one of many factors to be given consideration in determining the child’s best interests. This preference is not controlling on the trial court, and it is error for a trial court to base its decision solely on a child’s preference. There is good reason for this rule. While a child’s expressed preference may reflect legitimate and wise reasons, it may just as easily reflect manipulation by a parent or a successful campaign by one parent to alienate the child from the other parent. However, when the trial court is reasonably satisfied that a child has not been manipulated and the child’s reasons for his preference are not frivolous, it is permissible to give significant weight to the child’s testimony regarding the parent with whom the child wants to live. Furthermore, it is not error for a trial court to state a child’s preference was a “deciding factor” in its decision as long as it clearly weighed other factors and circumstances in reaching its decision.

After examining the record, the Court concluded:

[T]he trial court clearly considered the source of and reasons for Son’s expressed preference as part of a larger inquiry involving all the relevant statutory factors. In its order, the trial court stated it was satisfied that Son genuinely wanted to live in Memphis with Father for good reasons, including his desire to cultivate a group of friends there and to attend a school that promotes swimming. The evidence does not preponderate against the finding that Son’s preference was genuine and based on good reasons.

Both Son and the parties testified that Son had expressed this preference long before the evidentiary hearing took place. In part, Son’s preference was motivated by a desire to participate in a high school swimming team. While MUS has a swim team, Son’s current high school does not. Testimony revealed that there are benefits of being on a high school swim team including comradery, recognition from others, as well as the ability to win swimming awards and break records specific to high school swimming teams….

[T]he evidence does not preponderate against the trial court’s findings that Son’s expressed preference was genuine and based on sound reasons, including the promotion of his athletic and social development. As a result, the trial court did not err in giving significant weight to Son’s expressed preference….

We find that the trial court carefully examined the source of and reasons for Son’s expressed preference and, because it was satisfied that Son’s preference was genuinely his alone and based on good reasons, afforded that preference significant weight. However, the trial court did not base its decision solely on this important factor and instead included it as one of many other considerations. Because the trial court analyzed the reasons for Son’s preference and because that preference was only one of many factors considered, we find that the trial court did not err in its consideration of Son’s expressed preference.

Accordingly, the trial court was affirmed.

K.O.’s Comment: In their briefs, both parties cited the Tennessee Supreme Court decision in Armbrister v. Armbrister for the proposition that proving a material change in circumstance for purposes of changing the primary residential parent, i.e., changing custody, no longer requires a showing that the change was not reasonably foreseeable at the time the parenting plan was entered.

Both parties were wrong.

The issue in Armbrister was a modification of a residential parenting schedule rather than a modification of the designation of the primary residential parent. Because of this, the Armbrister opinion turned on the language of Tennessee Code § 36-6-101(a)(2)(C) rather than Tennessee Code § 36-6-101(a)(2)(B). Different sets of criteria exist for determining whether a material change in circumstances exists for a modification of a residential parenting schedule as compared to the standard that applies for a modification of custody.

To clear up any confusion, the Court in this opinion makes clear that the Tennessee Supreme Court decision in Armbrister, which applied directly to modifications of the residential parenting schedule, does not extend to modifications of the primary residential parent.

Robinson v. Robinson (Tennessee Court of Appeals, Middle Section, March 16, 2015).

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

Posted by: koherston | March 27, 2015

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Knoxville divorce lawyers

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

Knoxville grandparent visitation lawyersFacts: Mother and Father are the divorced parents of Child. Father was convicted of stalking mother and has no visitation with Child. Father has been in and out of jail throughout Child’s life.

Mother and Child resided with Paternal Grandparents for 12 months after Child’s birth. Father was incarcerated during much of this time. Even after Mother moved from Paternal Grandparents’ home, Grandmother would babysit Child three days a week. Paternal Grandparents enjoyed frequent visits with Child.

Paternal Grandparents filed a petition for grandparent visitation that alleging they had no overnight visitation with Child for over one year. Grandmother testified she frequently requested visitation with Child, but that Mother always responded that Child had plans.

Mother testified that Paternal Grandparents called infrequently to request visitation, but that when they did request visitation, Mother and Child’s schedule could not accommodate the visitation. In addition, Mother testified that Paternal Grandparents only requested overnight visitation with Child and when Mother would suggest visitation at a park or restaurant, Paternal Grandparents declined.

In their petition for grandparent visitation, Paternal Grandparents requested visitation for one weekend each month plus visitation during summer, spring and fall breaks.

Mother responded that the Paternal Grandparents’ petition was merely a subterfuge to allow Father to obtain visitation with Child. Mother further stated she never opposed visitation solely with Paternal Grandparents.

At trial, Mother testified there have been no adverse effects to Child since Child has been spending less time with Paternal Grandparents.

The trial court found Paternal Grandparents had established that Child had resided with them for 12 months prior to the cessation of the relationship by Mother. As such, the trial court ruled Paternal Grandparents were entitled to a rebuttable presumption that denial of visitation may result in irreparable harm to Child. The trial court concluded no evidence was presented that rebutted the presumption. The trial court further found continued visitation with Paternal Grandparents was in Child’s best interests. The trial court awarded Paternal Grandparents visitation with Child one Friday evening every month and one continuous five day period during the summer.

Mother appealed.

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

The decisions of the U.S. Supreme Court and the Tennessee Supreme Court, interpreting the federal and state constitutions, explicitly prohibit any judicial assumption that grandparents/grandchild relationships always benefit the child, as contrary to the parents’ fundamental right to raise their children as they see fit.

To avoid such an assumption, the Tennessee Constitution and Tennessee’s grandparent visitation statute require a grandparents seeking visitation to prove, as a threshold requirement, that the child will be in danger of substantial harm if visitation is not ordered by the court. Both the federal Constitution and Tennessee’s grandparent visitation statute require the petitioning grandparent to show visitation was opposed or denied in order for the court to consider ordering visitation. A finding that the parent did not allow petitioning grandparents visitation whenever they requested it does not amount to a finding that visitation was opposed.

In all phases of a proceeding on grandparent visitation, there is a presumption that a fit parent is acting in the child’s best interests, and the court must accord special weight to the parent’s determinations.

After reviewing the record, the Court explained:

A thorough review of the record reveals . . . the trial court made no specific finding that Mother opposed visitation in this case….

The simple fact that there has been some deprivation of visitation is insufficient to support a finding that a custodial parent opposed visitation. Instead, the law is clear that the custodial parent is entitled to place reasonable limitations on a grandparent’s visitation with a child, as a reasonable limitations cannot be considered opposition to visitation. The issue of whether Mother offered [Paternal] Grandparents visitation with reasonable limitations, so as to defeat [Paternal] Grandparents’ claim that Mother opposed visitation, was a source of considerable dispute in the trial on this cause. This issue was left unresolved by the trial court’s order. The question remains, however, as to whether the trial court’s failure to make specific findings regarding this dispute is fatal to appellate review. We conclude that it is….

[T]he question of whether Mother, in fact, offered [Paternal] Grandparents [] visitation, whether that offer was reasonable, and whether [Paternal] Grandparents declined that visitation, must be resolved in order to determine whether Mother’s actions can be fairly characterized as opposing visitation, as defined by Tennessee case law.

Accordingly, the trial court was reversed and the case remanded to the trial court for further proceedings.

K.O.’s Comment: The opinion in Uselton v. Walton is particularly instructive on the issue of parental opposition to grandparent visitation. It is a must-read for lawyers litigating grandparent visitation cases in Tennessee.

Manning v. Manning (Tennessee Court of Appeals, Middle Section, March 10, 2015).

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

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