Posted by: koherston | April 17, 2015

Photo of the Week: River Otter Eating Trout

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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).

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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).

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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).

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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).

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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).

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Posted by: koherston | March 27, 2015

Photo of the Week: Zoey Belle

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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).

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Knoxville divorce and family law attorneysFacts: Mother was the unmarried parent of Child. Following the birth, Mother and Child lived with Grandparents in their home for over two years. Grandparents loved the child and they shared a close relationship.

One day Mother told Grandparents she was going shopping. When she left, she took Child with her. It was the last time Grandparents saw Child.

One month earlier, Mother began a relationship with a new boyfriend. After she left, Mother sent a text message to Grandparents saying she was not taking Child from them and she planned to be gone only one week.

After nearly a month, Grandparents had been unable to locate Mother and Child. They were worried about Child’s safety.

Mother’s boyfriend’s mother informed Grandparents that, according to her son, Child was no longer with the couple and that Mother may have given Child up for adoption.

Days later, Grandparents filed an emergency petition in juvenile court seeking custody of Child. At the initial hearing in that proceeding, they learned for the first time that Mother had already consented to the adoption of Child.

Grandparents then filed a petition in Chancery Court challenging Mother’s voluntary surrender of parental rights that precipitated the adoption. Grandparents alleged that awarding custody of Child to them was in Child’s best interest. They requested an order removing custody from the adoptive parents.

The trial court held Grandparents must prove by clear and convincing evidence that the removal of Child from the adoptive parents was in Child’s best interest. The trial court found Grandparents had not satisfied this burden of proof. In other words, the trial court held Grandparents did not have to prove the surrender or adoption was not in Child’s best interest; instead, they had to prove, by clear and convincing evidence, the removal of Child from the adoptive parents was in Child’s best interest.

Grandparents appealed.

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

In the context of adoptions involving a surrender or parental consent, Tennessee’s adoption laws permit biological parents to surrender their parental rights to a child in favor of a particular person or agency. The statutes allow a biological parent to surrender a child directly to a prospective adoptive parent chosen by the biological parent.

Although a biological parent has the right to make the initial choice of his or her child’s adoptive parent, the biological parent’s right to choose child’s adoptive parent is not absolute. In filing an adoption petition, the prospective adoptive parent must allege, among other things, that he or she is a fit person to have custody of the child and that it is in the best interest of the child for the adoption to occur. The trial court must then find the adoption is in the child’s best interest. Thus, the biological parent’s choice of an adoptive parent is always subject to the trial court’s determination that the proposed adoption is in the child’s best interests.

Tennessee’s adoption statutes contemplate different types of intervention by interested parties.

In cases involving a child who is the subject of a surrender, parental consent, or guardianship order, Tennessee’s adoption laws — specifically Tennessee Code § 36-1-111(u)(2) — authorize any person to intervene in a surrender or adoption proceeding for the purpose of presenting evidence regarding the best interests of the child.

After a trial, if the trial court finds by clear and convincing evidence that such action is in the best interests of the child, the trial court may enter an order removing the child from the prospective adoptive parents. In that event, the trial court may award custody of the child to any person.

Tennessee Code § 36-1-111(v)(4) provides in relevant part:

Upon the final hearing, and based upon clear and convincing evidence that the action is in the best interests of the child, the court shall have jurisdiction to enter an order removing the child from the prospective adoptive parents . . . and may award temporary legal custody giving any person . . . the care and custody of the child….

Grandparents argued the trial court erred in making them prove the surrender and proposed adoption of Child was not in Child’s best interest. Instead, they argued the trial court should have conducted a straightforward “best interest” analysis comparing their fitness to that of the adoptive parents. Grandparents’ argument turned on the meaning of the word “action” in the statute quoted above. Grandparents argued the statute placed the burden on them to show their complaint (i.e., “action”) and relief requested was in Child’s best interest and, therefore, that they need only show that awarding custody to them is in Child’s best interest.

The Court rejected this argument, explaining:

It is clear to us that the word “action” refers to the removal of the child from the prospective adoptive parents. In construing the provisions of Tennessee Code § 36-1-111(v)(4), we note that the introductory clause “based upon clear and convincing evidence that the action is in the best interests of the child” contemplates not the complaint or the cause of action alleged in that document, but rather the “order removing the child from the prospective adoptive parents.” That is the possible “action” granted to the trial court by statute. Thus, as the trial court correctly concluded, the burden was on Grandparents to show, by clear and convincing evidence, that it was in the best interest of the Child to remove her from the custody of the prospective adoptive parents.

As the trial court emphasized, Grandparents, despite their close relationship with the Child, are not on equal footing with [the adoptive parents] with respect to custody of the Child. As it stands, as a result of Mother’s choice to surrender the Child to [the adoptive parents] for adoption, Grandparents, as interested third parties, are saddled with the burden of proving that it is best for the Child to be removed from the prospective parents Mother has chosen for the Child. Stated differently, the law does not contemplate that Grandparents can easily “undo” Mother’s decision by simply asserting that it is best for the Child to be placed with them.

The trial court articulated and correctly applied the appropriate burden of proof with respect to Grandparents’ complaint. We reject Grandparents’ argument to the contrary….

[Mother] chose [the adoptive parents] to raise [Child]. It is harsh, but [Mother] made a second choice — she deliberately declined to select her own family, the family to which she was most familiar. [Mother] chose not to select the couple who raised her. The law in Tennessee allows a biological parent to offer the parent’s child to another family. The law does not require the biological parent to include or consult with extended family regarding this choice. The law requires the Court to give deference to the biological mother’s choice, unless by clear and convincing evidence the best interests of the child are fulfilled by disrupting this choice.

Accordingly, the trial court was affirmed.

K.O.’s Comment: This case illustrates well the painful emotional issues inherent in family law matters and how those emotions often must yield to the law.

In re R.S.M. (Tennessee Court of Appeals, Eastern Section, February 27, 2015).

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

Posted by: koherston | March 20, 2015

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Knoxville divorce and child custody lawyer

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

Knoxville family law attorneysFacts: Mother and Father divorced in 2010. Mother was named the primary residential parent and was awarded 223 days of parenting time to Father’s 142 days.

Two years later, Mother married an officer in the United States Navy. Mother’s husband received orders requiring him to move to Virginia.

Mother notified Father of her desire to relocate with Child to Virginia. Father filed a petition in opposition to the proposed relocation and requested a change of custody.

The main reason Father opposed Mother’s relocation was because of an incident of sexual abuse by Child’s stepbrother.

The proof at trial showed that Mother took appropriate steps to protect Child once she learned of the abuse. Mother and her husband fully implemented the safety plan Child’s therapist recommended — part of which required extra supervision of the children when Child and the stepbrother were together — and there have been no further incidents of abuse.

The trial court concluded Father had failed to prove that relocating to Virginia with Child would pose a specific threat to Child that outweighed the threat of harm from a change in custody. Thus, the trial court approved Mother’s request to relocate with Child.

The trial court entered a parenting plan awarding Mother 253 days of parenting time and 112 days for Father. Holidays were shared, and Father was awarded one weekend per month in Virginia during the school year. Child was to spend the majority of the summer with Father in Tennessee, with Mother to have one week at the beginning and end of the summer. During Child’s summer vacation with Father, Mother was awarded two four-day periods with Child in Tennessee.

Notably, the transportation costs incurred when Child flies to Tennessee to visit Father were allocated to Mother. The trial court explained its rationale for imposing Child’s transportation costs to Tennessee on Mother by noting that (1) Mother is the one who wanted to move, (2) Mother can afford to pay these costs, and (3) Child will not suffer any detriment as a result.

Mother appealed.

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

The trial court made Mother responsible for the transportation costs except for the nine weekends during the school year when Father may visit Child in Virginia. Mother argued the trial court improperly deviated downward from the presumptive child support amount Father should have been ordered to pay under the child support guidelines by requiring her to use a large portion of Father’s child support payments to pay for Father’s visitation.

The parental relocation statute, Tennessee Code § 36-6-108(f), addresses transportation costs and provides:

The court shall assess the costs of transporting the child for visitation, and determine whether the deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.

The child support guidelines that specifically address deviations for parenting time-related travel expenses as follows:

If parenting time-related travel expenses are substantial due to the distance between the parents, the tribunal may order the allocation of such costs by deviation from the [presumptive child support obligation], taking into consideration the circumstances of the respective parties as well as which parent moved and the reason that the move was made.

Deviation from the child support guidelines is within the discretion of the trial court and must serve the best interest of the child. Before deviating from the presumptive child support amount, trial courts are required to consider “all available income of the parents” and are required to find that an amount of child support other than the amount calculated under the Guidelines is reasonably necessary to provide for the needs of the child.

After reviewing the record, the Court concluded:

We disagree with Mother that the trial court deviated downward to lower her child support order when it made her responsible for [Child’s] travel expenses to Tennessee. Instead, we believe the court simply followed the statute’s direction to “assess the costs of transporting the child for visitation” and chose not to deviate from the guidelines after considering the relevant factors in this case. Mother was permitted to relocate with [Child] to Virginia, as she requested, and the trial court did not abuse its discretion by requiring her to share Father’s cost of exercising his visitation with [Child] once he was there.

Mother also argued the trial court erred in denying her request for an award of attorney’s fees.

Tennessee Code § 36-6-108(i) gives the trial court discretion to award attorney’s fees and other litigation expenses to either parent in a relocation matter. In this case, the trial court exercised its discretion not to award Mother her fees. The trial court commented:

[T]he reason we’re here . . . is because the mother married a gentleman and at the time she knew full well . . . that she was going to take the child away from the natural father. Just by virtue of the fact of marrying the man, she knew that was a consequence, so then to come back into court and request attorney’s fees is absurd. It is her fault that we’re here and we need to clearly understand that.

The Court rejected the trial court’s reasoning but affirmed the result, stating:

We disagree with the trial court’s reasoning that Mother was “absurd” to request her attorney’s fees under the facts of this case. Mother had every right to marry whomever she chose and to follow her husband to a different state when his work required him to relocate. We disagree with the trial court’s use of the word “fault” in its judgment. However, the statute does not grant Mother the right, as the prevailing party, to recover her fees, either. The trial court found Father had legitimate concerns regarding Mother’s relocation and [Child’s] continued safety….

[W]e cannot say under the facts of this case that the court abused its discretion in denying Mother’s request for her fees.

Accordingly, the trial court’s judgment was affirmed.

Dahl v. Young (Tennessee Court of Appeals, Middle Section, February 24, 2015).

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

Knoxville child custody lawyersFacts: Mother and Father are the unmarried parents of Child.

Father petitioned for parenting time with Child.

After hearing the proof at trial, the trial court awarded Father parenting time of alternating weekends and three hours every Tuesday night. Holiday time was to be shared and Father was awarded one week of continuous parenting time during the summer in the first year, two weeks the following year, and three weeks each year thereafter.

Notably, the trial court did not make specific findings of fact or state the statutory factors upon which it relied in setting the parenting time schedule. In its oral ruling, the court stated only:

Let me tell you why I am doing this, sir. You got to — you go to work at six o’clock. I hate when a child has to get up at 4:30 or whatever or — whatever and get over there, and you don’t have any time with the baby.

The trial court further observed that “both parties are honest, caring and loving people…. Father is a good man and a good father and the Mother is a good lady and a good mother.”

Father appealed.

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

Father argued the parenting schedule failed to provide him the maximum amount of parenting time. He suggested the evidentiary record “supports a more balanced parenting schedule.”

Tennessee Code §§ 36-6-106 and 36-6-404 specify factors a court must consider in making a child custody arrangement and in designing a permanent parenting plan. Tennessee Code § 36-6-106(a) requires that any such determination be made in the best interest of the child and provides:

In taking into account the child’s best interest, the court shall order a custody arrangement that permits both parents to enjoy the maximum participation in the life of the child consistent with the factors set forth in this subsection (a), the location of the residences of the parents, the child’s need for stability and all other relevant factors.

Tennessee Code § 36-6-404(b) requires that each parenting plan include a residential schedule which, among other things, “encourage[s] each parent to maintain a loving, stable and nurturing relationship with the child.”

After reviewing the record, the Court concluded:

In the absence of [specific findings of fact], we have reviewed the testimony . . . and conclude that the evidence preponderates against the parenting time schedule adopted by the court. The reason given by the court is, standing alone, insufficient justification to limit Father’s parenting time, particularly at times when Father is not at work. In addition, we fail to see any justification for limiting Father’s continuous parenting time during the summer months in the manner ordered.

We therefore reverse the residential parenting schedule and remand the case for the court to adopt a schedule that affords Father more parenting time, considering that Tennessee Code § 36-6-106(a) favors a parenting schedule that gives each parent the maximum amount of time in accordance with the child’s best interests.

Accordingly, the trial court’s parenting schedule was reversed and the matter remanded for a schedule that gives Father more parenting time.

K.O.’s Comment: I hesitate to read too much into this case because the lack of factual findings or any discussion of the statutory factors by the trial court can distinguish this case from others. Nonetheless, family law litigators should take note that a fairly common parenting schedule has been reversed for running afoul of the “maximum participation” provision in Tennessee Code § 36-6-106(a). This case may be helpful to those advocating for more parenting time at the trial court level.

In re Blaklyn M. (Tennessee Court of Appeals, Middle Section, February 24, 2015).

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

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