Things were pretty quiet on the legislative front this year. When it came to family law matters, the 108th General Assembly of the State of Tennessee did not appear to make things worse, which means it was a pretty good year.
Below is a brief recap of the new family law statutes, all of which became effective on July 1, 2014.
Child Custody “Comparative Fitness” and Best Interest Factors: Public Chapter 617 consolidated the list of factors the trial court must consider when conducting a comparative fitness analysis or determining the child’s best interest in a child custody proceeding. Previously, courts had to consider different (but substantively similar) factors for initial custody determinations and custody changes (Tennessee Code § 36-6-106(a)) and changes to a parenting schedule (Tennessee Code § 36-6-404(b)).
As amended, Tennessee Code § 36-6-106(a) now contains the following best interest factors:
(1) The strength, nature, and stability of the child’s relationship with each parent, including whether one parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
(2) Each 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. In determining the willingness 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, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
(3) Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
(4) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
(5) 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;
(6) The love, affection, and emotional ties existing between each parent and the child;
(7) The emotional needs and developmental level of the child;
(8) The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. The court may order an examination of a party under Rule 35 of the Tennessee Rules of Civil Procedure and, if necessary for the conduct of the proceedings, order the disclosure of confidential mental health information of a party under § 33-3-105(3). The court order required by § 33-3-105(3) must contain a qualified protective order that limits the dissemination of confidential protected mental health information to the purpose of the litigation pending before the court and provides for the return or destruction of the confidential protected mental health information at the conclusion of the proceedings;
(9) The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
(10) The importance of continuity in the child’s life in the length of time the child has lived in a stable, satisfactory environment;
(11) Evidence of physical or emotional abuse to the child, to the other parent or to any other person. The court shall, where appropriate, refer any issues of abuse to juvenile court for further proceedings;
(12) The character and behavior of any other person who resides in or frequent the home of a parent and such person’s interactions with the child;
(13) 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;
(14) Each parent’s employment schedule, and the court may make accommodations consistent with of those schedules; and
(15) Any other factors deemed relevant by the court.
Likewise, the sixteen factors in Tennessee Code § 36-6-404(b) have been deleted. Thus, there is now just one list of best interest factors instead of two.
K.O.’s Comment: This list is simply an effort to combine the two prior lists. Combining them makes sense. There is no substantive change in the best interest analysis.
Parental Bill of Rights: Public Chapter 617 also rewrote the “Parental Bill of Rights” in Tennessee Code § 36-6-101(a)(3). The new list of rights is as follows:
(i) The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations. The parent exercising parenting time shall furnish the other parent with a telephone number where the child may be reached at the days and time specified in the parenting plan or other court order or, where days and times are not specified, at reasonable times;
(ii) The right to send mail to the child which the other parent shall not destroy, deface, open or censor. The parent exercising parenting time shall deliver all letters, packages and other material sent to the child by the other parent as soon as received and shall not interfere with their delivery in any way, unless otherwise provided by law or court order;
(iii) The right to receive notice and relevant information as soon as practicable but within twenty-four (24) hours of any hospitalization, major illness or injury, or death of the child. The parent exercising parenting time when such event occurs shall notify the other parent of the event and shall provide all relevant healthcare providers with the contact information for the other parent;
(iv) The right to receive directly from the child’s school any educational records customarily made available to parents. Upon request from one parent, the parent enrolling the child in school shall provide to the other parent as soon as available each academic year the name, address, telephone number and other contact information for the school. In the case of children who are being homeschooled, the parent providing the homeschooling shall advise the other parent of this fact along with the contact information of any sponsoring entity or other entity involved in the child’s education, including access to any individual student records or grades available online. The school or homeschooling entity shall be responsible, upon request, to provide to each parent records customarily made available to parents. The school may require a written request which includes a current mailing address and may further require payment of the reasonable costs of duplicating such records. These records include copies of the child’s report cards, attendance records, names of teachers, class schedules, and standardized test scores;
(v) Unless otherwise provided by law, the right to receive copies of the child’s medical, health or other treatment records directly from the treating physician or healthcare provider. Upon request from one parent, the parent who has arranged for such treatment or health care shall provide to the other parent the name, address, telephone number and other contact information of the physician or healthcare provider. The keeper of the records may require a written request including a current mailing address and may further require payment of the reasonable costs of duplicating such records. No person who receives the mailing address of a requesting parent as a result of this requirement shall provide such address to the other parent or a third person;
(vi) The right to be free of unwarranted derogatory remarks made about such parent or such parent’s family by the other parent to or in the presence of the child;
(vii) The right to be given at least forty-eight (48) hours notice, whenever possible, of all extracurricular school, athletic, church activities and other activities as to which parental participation or observation would be appropriate, in the opportunity to participate in or observe them. The parent who has enrolled the child in each such activity shall advise the other parent of the activity and provide contact information for the person responsible for its scheduling so that the other parent may make arrangements to participate or observe whenever possible, unless otherwise provided by law or court order;
(viii) The right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than forty-eight (48) hours, an itinerary which shall include the planned dates of departure and return, the intended destinations and mode of travel and telephone numbers. The parent traveling with the child or children shall provide this information to the other parent so as to give that parent reasonable notice; and
(ix) The right to access and participation in the child’s education on the same bases that are provided to all parents including the right of access to the child during lunch and other school activities; provided, that the participation or access is legal and reasonable; however, access must not interfere with the school’s day-to-day operations or with the child’s educational schedule.
K.O.’s Comment: These revisions place new burdens on on the primary residential parent that did not exist before. For example, the custodial parent now has the affirmative obligation to provide the non-custodial parent not only with notice of the child’s school, athletic or church activity activity but also the telephone number the school, athletic or church official who is “responsible for scheduling” the activity. For another example, the custodial parent now has the affirmative obligation to provide “healthcare providers with the contact information” of the non-custodial parent. Lawyers need to make sure their clients understand these new obligations.
Lawyers will also need to update their parenting plans, all of which recite the Parental Bill of Rights. The Administrative Office of the Courts has updated the parenting plan form to reflect these changes. You can access the updated parenting plan here.
Uniformed Deployed Parents Custody and Visitation Act: Public Chapter 798 permits parents to enter into a temporary agreement granting custodial responsibility during a parent’s military deployment. If the non-deploying parent has no custodial responsibility or if the operative court order prohibits contact between the child and that parent, the deploying parent may, via a power of attorney, delegate all or part of the custodial responsibility to a third party for the period of the deployment. Tennessee Code §§ 36-6-113 and 36-6-308 are deleted.
In Loco Parentis Healthcare Power of Attorney for a Minor Child: Public Chapter 696 requires an adult or organization acting in loco parentis (“in the place of the parent”) to sign an “in loco parentis affidavit” stating that the person has taken responsibility for the health care of the minor child. This protects doctors and hospitals from civil and criminal liability if they rely on the in loco parentis affidavit when providing medical care to a child.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.