Posted by: koherston | October 28, 2015

Orders of Protection in Tennessee

This recent article by Marlene Moses and Manuel Benjamin Russ in the Tennessee Bar Journal may be of interest to readers of this blog.

Perfecting Protection

In Tennessee, a party may take protective action from another person short of filing a criminal warrant by requesting an Order of Protection from the appropriate jurisdictional authority. Despite the fact that an Order of Protection does not carry the immediate danger of incarceration or a criminal record, an Order of Protection is a powerful measure that gives the Court broad discretion in a number of areas that are of great concern to a family law practitioner in addition to its primary function of providing court ordered protection for one party from another. When and how should a family law attorney advise her/his client about an Order of Protection? The mechanics, details, and uses of an Order of Protection are discussed at greater length below.

Tennessee order of protectionThe Tennessee General Assembly chose to include a clear statement of purpose for all of chapter 36, stressing that, in the past, domestic abuse had been treated differently by the authorities than other offenses and that this chapter was designed to give additional protection to victims that had been absent in years past.[1] With this declaration by the Legislature regarding the fundamental purpose of the section in mind, this article will review the procedure for and repercussions of getting an Order of Protection.

1. Why you can obtain an Order of Protection and what happens when you get one.

An Order of Protection may be obtained by a person as a means of protecting that individual from another who has engaged in various forms of inappropriate conduct. Each particular type of conduct that would permit a party to obtain an Order of Protection constitutes, by itself, a criminal offense, but an Order of Protection is strictly a civil measure. An Order of Protection may only be taken by the sworn petition of a victim of a domestic assault, stalking or sexual abuse pursuant to Tenn. Code Ann. Section 36-3-602.[2] If the victim happens to be a minor child at the time of the incident, then the guardian of the child may seek an Order of Protection on his/her behalf.[3] Often, though not always, a court will issue an Ex Parte Order of Protection when the initial petition is filed and the Ex Parte Order will remain in effect pending a hearing on the issues alleged in the petition, which must be docketed no more than 15 days after the petition is filed.[4] Once an Order of Protection has been granted, the respondent is then prohibited from contacting the petitioner by any means either directly or indirectly, in addition to ceasing the conduct that precipitated the filing of the petition.[5] Typically, an Order of Protection lasts no more than one year from the date that the petition is granted; however, a court may extend the protective order for additional one-year increments “on proper showing of cause” indefinitely.[6]

An additional issue that spawns from the issuance of an Order of Protection that often affects the respondent directly and permanently is federal and state restrictions on possession and use of firearms by the respondent. If an Order of Protection has been issued against a respondent, and the order is one that is described in 18 US 922(g)(8), then it is a federal offense for a respondent to own or possess a firearm or ammunition in interstate commerce.[7] It should be noted that the federal offense does require that the firearm and/or ammunition be part of interstate commerce and, though this is typically not a difficult requirement to meet, it is possible that possession of a firearm within the State of Tennessee does not run afoul of 18 US 922(g)(8). Consequently, in addition to this serious federal prohibition against the possession of firearms, the state has proscribed the possession of any firearms at all while a respondent has an Order of Protection entered against them.[8] A respondent must be given notice of the prohibition against firearms at the time the Order of Protection is entered against him/her.[9]

2. What happens if you violate an Order of Protection?

If there is a violation of the Court’s protective order, the he or she may either seek civil or criminal contempt against the respondent,[10] or the petitioner may seek a criminal warrant for the offense of Violation of an Order of Protection as a remedy for the violation.[11] A violation of an Order of Protection is now a misdemeanor in Tennessee and punishable by up to an 11 months and 29 days sentence.

If the petitioner chooses to file a petition for contempt, they may proceed on their own in the court that issued the Order of Protection. If the petitioner is seeking a criminal warrant, that must be pursued by the district attorney’s office for that jurisdiction. Criminal and civil liability including, but not limited to, jail time, a criminal record, monetary penalties and, potentially, the loss of other rights controlled by the court during the pendency of a divorce like visitation are all possible consequences for the violation of an Order of Protection.

3. What should a family law practitioner know about Orders of Protection?

For the family law practitioner, an Order of Protection provides the attorney with the chance to request from an issuing court many things that are of the utmost importance in a family law case. The court that issues an Order of Protection, in addition to restricting the respondent from contacting the petitioner, may address who has possession of the residence, who has custody of the minor children, how much support the respondent must pay to the petitioner, including child support, and even who should get the family pets.[12] In a case where there is either a pending divorce, or there will be one, or in a case where custody of a minor child between non-married parties will need to be resolved, this first chance to lay the groundwork for the court is critical. An Order of Protection might be the first time that a court has addressed any of these issues and, unlike a typical divorce action, the respondent to a petition for an Order of Protection will also need to defend himself/herself against the allegations in the petition in addition to advocating for their position of the above mentioned pertinent issues. Because of the nature of the petition, it is often in an unfavorable light that the court first views the respondent and, consequently, a petitioner has a great deal of leverage over the entire family case when a petition has been filed.

The public is becoming increasingly aware of the pervasiveness of domestic violence as well as other unwanted contact between intimate partners such as harassment and stalking. Orders of Protection, as noted in Tenn. Code Ann. § 36-3-618, have been created in an attempt to rectify prior, historical ignorance of these issues. If a family law practitioner is faced with a situation in which a client feels unsafe becauase of this type of conduct by his or her partner, the lawyer should do everything possible to assist in obtaining an Order of Protection. This would include bringing them to the magistrate or court issuing the Order, or filing the petition for them. Obviously, assistance of counsel at a hearing would be beneficial. As noted above, the issuance of an Order of Protection may give them a tactical advantage in the case as well and can be a good opportunity to address necessary issues in family law cases, like division of assets and child support, on terms and at a time that is favorable to the petitioner.

Given the advantage that a party with an Order of Protection in place enjoys, it is not hard to envision the misuse of an Order of Protection in a family law setting. It is not beyond the realm of possibility that a party to a divorce, or one that anticipates becoming a party to a divorce may file a petition for an Order of Protection on falsified though plausible grounds in order to gain substantial leverage in a pending or future lawsuit. Given the varied and critically important family law issues that come under the court’s control, pursuant to the enumerated and non-enumerated list in Tenn. Code Ann. § 36-3-606, a party can gain an ill-gotten but substantial upper hand through the filing of a false petition for an Order of Protection. If the petition is filed during the pendency of a divorce after counsel has been retained, counsel for the petitioner must exercise firm control over the process and be an impartial judge of the veracity of their client’s claims before assisting with filing a petition. A false claim, even one that is later repudiated, can do lasting damage to one or both of the parties in the divorce.

A family law practitioner must use sound judgment in determining whether interaction between the parties is merely bitterness arising from an emotional divorce, or if the conduct is truly something where a protective order is necessary for the intended purpose specified in Tenn. Code Ann. § 36-3-618. Additionally, costs may well be assessed against a party who has been determined to have filed a false order of protection.[13]

In some situations, parties who are participating in an ongoing petition for an Order of Protection may try to resolve the matter through the use of a mutual, agreed restraining order that prohibits both parties from unwarranted contact. Though this resolution seems to resolve the issue of protection and harassment for both parties, Tennessee appellate courts have noted that a trial court has no statutory authority to order a mutual restraining order in lieu of granting, or dismissing, a petition for an Order of Protection that has been litigated in its court.[14] Appellate courts have further noted that an agreed Order entered into by the parties, even with the approval of the trial court, does not trump or countermand an Order of Protection that has previously been granted.[15] If the parties wish to resolve their differences by an mutually agreed upon joint restraining order, it appears that the petitioner would have to dismiss any existing or pending Order of Protection before the agreed Order would have the desired effect and be endowed with the proper judicial authority over and above an Order of Protection. Consequently, family law practitioners should be wary of this method of attempting to resolve a pending or existing Order of Protection since the mere signing of an agreed restraining order may not, in fact, be a lawful order.

Orders of Protection are commonplace in Tennessee today and frequently arise in family law cases. A family law practitioner should be well versed in the proper, and improper, uses and protections provided by this legal tool the legislature has enacted in the effort to curb domestic abuse and violence.

1.  Tenn. Code Ann. § 36-3-618
2.  Tenn. Code Ann.§ 36-3-602(a)
3.  Tenn. Code Ann. § 36-3-602(b)
4.  Tenn. Code Ann. § 36-3-605(a)
5.  Tenn. Code Ann. § 36-3-606
6.  Tenn. Code Ann. § 36-3-605(b)
7.  18 US 922 (g)(8) states that it unlawful for a person to possess a firearm if that person has had a court order that they be restrained from “harassing, stalking, or threatening an intimate partner”that the person had notice and a chance to be heard, and that the court made a finding that the person presented a “credible threat” to their intimate partner, or if the court’s findings state that the person used, threatened or attempted physical force.
8.  Tenn. Code Ann. § 39-13-113(h)(1).
9.  Tenn. Code Ann. § 36-3-625.
10.  Tenn. Code Ann. § 36-3-610.
11.  Tenn. Code Ann. § 39-13-113(a)(1).
12.  Tenn. Code Ann. § 36-3-606.
13.  Jackson v. Lanphere, 2012 WL2244797 (Tenn.Ct.App. June 15, 2012).
14.  Carr v. Allen, 2011 WL 578752 (Tenn.Ct.App. Feb. 16, 2011).
15.  Wiser v. Wiser, 2011 WL 4729870 (Tenn.Ct.App. Oct. 7, 2011), stating that an agreed restraining order that was incorporated into the Marital Dissolution Agreement did not and could not vacate or modify the existing Order of Protection that had been granted during the pendency of the divorce.

Source: Perfecting Protection (Tennessee Bar Journal, May 2015).

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

Facts: The facts of this sad case are set forth in my blog post on the Court of Appeals’ opinion. Click HERE to see that post. I suggest you read that post before proceeding.

On Appeal: The Tennessee Supreme Court reversed the courts below.

Holding #1: The judgment terminating Mother’s parental rights is void.

The record of the proceedings in which Mother’s parental rights were terminated thus demonstrates that Father failed to submit the statutorily required affidavit detailing his diligent efforts to locate Mother’s whereabouts or residence. Father’s evident failure to comply with the statutory requirements necessary for dispensing with personal service and resorting to constructive service by publication deprived the trial court of personal jurisdiction over Mother. Therefore, as the trial court and Court of Appeals determined, the judgment terminating Mother’s parental rights is void….

The record reflects clearly that Father failed to abide by these statutory procedures. Therefore, constructive service by publication was ineffective, and the judgment terminating Mother’s parental rights is void for lack of personal jurisdiction.

The Court also commented that it cannot excuse Father’s “blatant noncompliance” with the law.

Holding #2: There is no time bar for attacking a void judgment.

Tennessee Rule 60.02 does not abrogate the longstanding rule that void judgments may be attacked at any time. The reasonable time filing requirement [at the end of Rule 60.02] thus may not be applied to bar motions seeking relief from void judgments pursuant to Tennessee Rule 60.02(3).

Holding #3: Relief from a void judgment may be denied if certain exceptional circumstances exist.

exceptionalUntil now, no Tennessee court has attempted to define the exceptional circumstances that justify denying relief from a void judgment. The Supreme Court expressly adopts § 66 of the Restatement (Second) of Judgments, which provides:

Relief from a default judgment on the ground that the judgment is invalid will be denied if:

(1) The party seeking relief, after having had actual notice of the judgment, manifested an intention to treat the judgment as valid; and

(2) Granting the relief would impair another person’s substantial interest of reliance on the judgment.

After adopting § 66, the Supreme Court remanded the case to the trial court for an evidentiary hearing to determine whether the exceptional circumstances defined by § 66 justify denying Mother relief from the void judgment terminating her parental rights.

As to the first prong — whether Mother manifested an intention to treat the void judgment as valid — the Court says:

[S]ection 66 will require the trial court on remand to determine whether, after receiving actual notice of the judgment terminating her parental rights, Mother manifested her intention to treat the judgment as valid. The undisputed facts in the record on appeal establish that Mother waited approximately two years after receiving actual notice of the default judgment terminating her parental rights before filing her petition for relief from it under Tennessee Rule 60.02(3). During this two-year period, the proof in the record indicates that Mother did not attempt to contact, visit, or provide financial support for the children, although she knew where Father was employed. On remand, the trial court should consider these circumstances, and any other relevant proof the parties present, when determining if Mother’s inaction can be taken as an affirmation of the judgment because the circumstances invited an expression of a contrary position.

Regarding the second prong — whether granting relief to Mother would impair another person’s substantial interest of reliance on the void judgment — the Court comments:

[W]e note that one child is no longer a minor, and the other child will reach majority on January 4, 2016. A person eighteen or older may choose to be adopted, and when this choice is made, only the sworn, written consent of the person sought to be adopted shall be required…. The record on appeal contains no proof establishing: (1) whether the children have ever been adopted by the woman Father married after divorcing Mother; (2) whether either child has a preference concerning a maternal relationship with Mother or the woman Father married after divorcing Mother; and (3) whether the adult child has already made legal choices concerning adoption, as the law permits. These are factual matters the trial court must resolve on remand when determining whether granting Mother relief from the void judgment would impair another person’s substantial reliance interests in status…. Whether Father’s decision to refrain from seeking child support also amounts to a substantial reliance interest that would be impaired by granting Mother relief from the void judgment is another factual matter that should be developed and considered on remand.

Furthermore, in determining whether granting relief from the void judgment would impair another person’s substantial reliance interest, the trial court may consider the relative equities between the parties. Mother’s failure to make any effort to contact her children or financially support them from January 2001 until July 29, 2010, when she filed her petition is relevant to determining where the relative equities lie. This is particularly true here, where, although Father’s residence changed, his place of employment remained the same throughout the years of Mother’s inaction. Thus, the record on appeal establishes that Mother could have attempted to contact and support her children during this time by contacting Father at his place of employment but failed to do so. On remand, the trial court may consider this circumstance, and any other fact relevant to the relative equities of the parties, when determining whether granting relief from the void judgment would substantially impair another person’s substantial reliance interest on the judgment.

Accordingly, the case is remanded to the trial court for an evidentiary hearing on whether “exceptional circumstances” justify denying relief from the void judgment terminating Mother’s parental rights.

K.O.’s Comment: (1) Does anyone think the trial court will not find exceptional circumstances here?

(2) Why didn’t the Court of Appeals address the “exceptional circumstances” question at all? The concurring opinion begged the Supreme Court to reverse the decision. The Supreme Court had no trouble finding the means to do so. Why didn’t the Court of Appeals do it first?

(3) This is a sad case in every way. Father blatantly ignored the law and Mother’s constitutional right to due process. Once Mother learned of Father’s actions, she sat on her hands for two years and did nothing. Meanwhile, the children’s lives went on. One child is now an adult and the other likely will be before the evidentiary hearing can be had in the trial court. When it’s all said and done, the children’s (now adults’) desires and interests must determine the outcome. What a mess. There are no winners here.

Turner v. Turner (Tennessee Supreme Court, October 21, 2015).

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

Posted by: koherston | October 23, 2015

Photo of the Week: Salmon Boat

Salmon Boat

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

Posted by: koherston | October 19, 2015

Only One Month Until Tennessee Family Law Update

Our annual tour presenting the Tennessee Family Law Update seminar begins one month from today! Yikes!

Much has transpired since last year’s seminar. Since then the courts have clarified:

  • what “maximum participation” means (and what it does NOT mean);
  • the effect of anti-relocation provisions commonly used in parenting plans; and
  • criminal contempt, what makes one the “prevailing party” for an award of attorney’s fees, same-sex marriage and divorce, and much, much more!

Join us in:

  • Memphis: Monday, November 16;
  • Nashville: Tuesday, November 17;
  • Chattanooga: Wednesday, November 18;
  • Johnson City: Thursday, November 19; and
  • Knoxville: Friday, November 20.


Last year’s attendees said:

  • This is the best CLE I have ever attended. – Pam Blair, Esq., Memphis
  • This seminar is by far the most helpful family law CLE each year. It is a “can’t miss” for me. – Melody Luhn, Esq., Knoxville
  • Most useful family law seminar I have ever attended! – Alice Alexander, Esq., Kingsport
  • If you practice family law and don’t attend this CLE, you are doing yourself and your clients a disservice. – Christopher Seaton, Esq., Knoxville

If you haven’t already signed up, please don’t wait any longer. I really look forward to meeting readers of this blog.

Click here for more details!

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

Posted by: koherston | October 16, 2015

Photo of the Week: Morning in Alaska


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

Posted by: koherston | October 14, 2015

Tennessee County Has Divorce Rate of Almost 90 Percent

This recent story by Jessica Jaglois at WKRN has been raising some eyebrows.

Trousdale County’s divorce rate exceeds marriage

There are four counties in Tennessee where the divorce rate is higher than the marriage rate.

Hartsville is the self-proclaimed heart of Tennessee, and at the local salon, Betsy Walker says she’s a pro at divorce — she’s done it four times.

“Just trade ‘em in, get a new model, like a car,” she said.

The stylist isn’t surprised by the data from the Tennessee Department of Health.

In 2013, the last year the data was available, more people filed for divorce than for marriage licenses in Trousdale County where Hartsville is.

“Everybody is in everybody’s business and everybody knows each other here. So probably a lot of people get caught,” said Walker.

The health department data shows about 50 percent of couples in Tennessee get divorced.

In Trousdale County, it’s almost 90 percent.

Brad Frakes is a family attorney in Nashville. He said the leading causes of divorce are sex and money.

“In my experience it’s infidelity, somebody is unhappy with the other for having sexual relations with someone else, cheating. Or it’s money issues. They’ve improperly spent money or just aren’t making enough money,” he said.

Kenny Linville is a judge in town and has been married for over forty years. He says he sees courtrooms full people looking to get divorced.

“Some of them maybe married for 30, 40 years,” he said.

K.O.’s Comment: Here’s the link to the county-by-county data. What the heck is going on in Trousdale County?

Source: Trousdale County’s divorce rate exceeds marriage (WKRN, September 24, 2015).

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

Tiger sshhhFacts: Father and Mother are the divorced parents of a 10-year-old child.

Several years after their divorce, they were in the midst of a parental relocation trial on Mother’s request to move with the child to Illinois. In the course of that trial, Mother called the child’s therapist to testify to facts and opinions relevant to the child’s best interest.

The therapist’s testimony included some statements made by the child. The therapist relied on statements made by the child to bolster the therapist’s opinion and to support the therapist’s diagnoses.

Appeal: The Court of Appeals affirmed the trial court.

Father argued (1) the trial court should have prohibited the therapist from being a conduit for the child’s testimony, and (2) the communications between the child and the therapist were privileged communications.

Secondhand accounts of Child’s statements. Father first argued the therapist’s testimony regarding the child’s statements were not covered under the narrow hearsay exception provided by Tennessee Rule of Evidence 803(25). The Court said subsection (25) is not applicable because the case does not involve allegations of abuse and neglect. Thus, the hearsay exception in Rule 803(25) does not permit the admission of Child’s statements through the testimony of the therapist.

The Court concluded, however, that Rule 703 is dispositive on the issue presented.

Tennessee Rule of Evidence 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness.

The Court explains:

This language has been interpreted to allow hearsay to support an expert opinion. Therapists rely on the hearsay statements of their clients to form opinions regarding a diagnosis. Because the hearsay statements at issue were used to bolster [the therapist’s] diagnosis, we find no abuse of discretion in the trial court’s decision to allow [the therapist] to testify as an expert and to admit the statements of [Child] about which she testified.

Accordingly, the trial court’s decision to permit the therapist to testify as to Child’s statements is affirmed.

Privileged communications. Father then argued Child’s statements to the therapist were privileged and, therefore, inadmissible.

Tennessee Code Annotated § 63-22-144 provides in relevant part:

The confidential relations and communications between licensed marital and family therapists, licensed professional counselors or certified clinical pastoral therapists and clients are placed upon the same basis as those provided by law between attorney and client, and nothing in this part shall be construed to require any such privileged communication to be disclosed.

After reviewing the record, the Court concluded:

[T]he law recognizes a confidential relationship between a marital and family therapist and his or her client. In Shaw v. Shaw, a case involving a father’s request for access to his daughter’s counseling records, the court stated:

We conclude that a child’s perceived loss of a confidential relationship with a therapist, standing alone, is insufficient to make the furnishing of such records to a parent, including a noncustodial parent, against a child’s best interest.
. . .
[W]hile these records certainly are privileged, that privilege can be waived by either parent, unless to do so would not be in the child’s best interest. In the absence of a finding of abuse, a finding that it is in the child’s best interest not to disclose the records to a non-custodial parent will be a difficult hurdle to overcome.

In this case, [Child] is a ten-year-old, so her confidential relationship with [the therapist] was subject to waiver by either of her parents, unless the trial court determined that allowing such waiver would be contrary to her best interest. The trial court rejected Father’s privilege argument, stating that perhaps if [Child] were an older child, 16 or 17, the Court would have taken the argument more seriously.

We find no abuse of discretion in the trial court’s rulings with regard to the testimony of [the therapist].

Thus, the trial court’s ruling that Child’s privilege could be waived by Mother was affirmed.

K.O.’s Comment: (1) The opinion suggests it may not be appropriate for a court to allow a parent to waive the privilege of an older child aged 16 or 17 but it’s okay for a 10-year-old. Tennessee courts are all over the place as to when a child’s right to privacy can be abrogated. In Lawrence v. Lawrence, the Court held it was appropriate for a parent to record telephone calls between a 2 1/2-year-old child and the other parent. In In re Jordin M., the Court suggests the child’s therapist erred by allowing a parent to be present for part of the “confidential therapy sessions” with the five-year-old child. In Gonzalez-Bonilla v. Mendez, the Court ruled it was inappropriate for the mother to monitor the nine-year-old child’s Skype conversations with the father.

(2) The Court says this is the first Tennessee case decided under Rule 703 involving a child’s statements to a therapist or psychologist. According to the Court, all previous opinions about children’s statements to therapists have been decided under Rule 803(25) regarding “statements about abuse or neglect made by a child alleged to be the victim of the physical, sexual, or psychological abuse or neglect.”

Watson v. Myers (Tennessee Court of Appeals, Middle Section, October 7, 2015).

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

Posted by: koherston | October 9, 2015

Photo of the Week: Sea Lion “Kiss”


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

Facts: Mother and Father, parents of two children, filed for divorce. During their separation, they took turns having the children stay with each parent for a week at a time.

Mother filed a proposed parenting plan designating her as the primary residential parent and allowing Father 80 days of parenting time each year.

Father filed a proposed parenting plan designating him as the primary residential parent and allowing Mother 90 days of parenting time each year.

The proof at trial showed Father is a firefighter who has the typical firefighter’s schedule of working 24 hours straight followed by 48 hours off.

The_Babysitters_Club_logo_1416427992316_9690111_ver1.0_640_480Following the trial, the trial court entered a parenting plan that awarded the children to Father during the 48 hours Father is off from work and awarding them to Mother during the 24 hours Father is working. This resulted in 265 days for Father and 120 days for Mother.

Mother appealed.

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

Mother argued the trial court’s parenting schedule is illogical and an abuse of discretion.

After reviewing the record, the Court reasoned:

The number of days the court awarded Mother is not objectionable, but the residential schedule is unorthodox and problematic because it is based entirely on Father’s work schedule and has no regularity to it….

The trial court’s residential schedule has the children changing residences multiple times each week, without regard to school days, weekends, holidays, or summer vacations. There is absolutely no consistency from week to week. Although Mother is awarded the children for one-third of the year, she has no continuity with the children for more than twenty-four hours at a time…. As Mother aptly notes, “this schedule basically relegates Mother to the position of ‘babysitter’ for the children while Father is working and gives her very little meaningful opportunity to parent her children, even as an alternate residential parent.” The trial court’s schedule . . . constitutes an abuse of the trial court’s discretion….

As an appellate court, we are not in a position to create a permanent parenting plan anew. Therefore, we remand this case to the trial court with directions to schedule a hearing for the purpose of setting up a new permanent parenting plan, with Father designated as the primary residential parent. The parenting plan should be based on the form provided by the courts, where the children have a regular schedule; the children are scheduled to spend holidays with one parent or the other, on a regular, alternating basis from year to year; the parents split the time they have with the children during the December/January school break; and where the parents have the opportunity to spend one-half of each summer vacation with the children.

Father testified at trial that his mother often helps him care for the children when he has to leave for work early in the mornings and the children are at his house. Father’s mother has fed the children, driven them to and home from school, and stayed overnight with them when Father is unavailable. This arrangement may deprive Mother of time she could have with the children. In this particular circumstance, this arrangement may not comply with the statutory directive that courts are to “order a custody arrangement that permits both parents to enjoy the maximum participation possible in the life of the child consistent with the factors set out in subdivisions (a)(1)-(10) . . . .” Thus, the court should consider whether the parenting plan should specify that if Mother or Father has a conflict during her or his parenting time such that she or he is unavailable to care for the children or drive them where they need to be, that parent shall inform the other parent in a timely manner and give the other parent the right of first refusal to be with or provide for the children.

Accordingly, the trial court’s parenting schedule was reversed.

K.O.’s Comment: Compare the “maximum participation” language here with the ruling in Leonard v. Leonardo. Taken together, they certainly suggest the maximum participation provision means the child usually should not have to rely on a third party caregiver when the other parent is available to exercise parenting responsibilities. I think these two cases illustrate what will become the first consistent impact of the maximum participation provision.

Also, the Court’s dicta regarding alternating holidays, splitting school breaks, and equally dividing the summer vacation may be useful to Tennessee family law attorneys working on parenting schedules.

Roland v. Roland (Tennessee Court of Appeals, Middle Section, September 29, 2015).

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

Facts: Mother and Father, parents of three children, divorced in 2009.

They agreed to a parenting plan awarding 182 days to Father and 183 days to Mother based on an alternating week-to-week schedule. Notably, the parenting plan contained the following provision in Paragraph J:

If either party should relocate from Lincoln County, Tennessee, the children shall reside primarily with the party remaining so as to keep the children in the Lincoln County School System.

Both parties subsequently remarried. Mother gave birth to three children with her new husband.

parental relocationIn 2014, Mother notified Father that she and the children would be moving to Brentwood, Tennessee because of her new Husband’s employment.

Father filed a petition in opposition to the proposed relocation and requested that he be named the primary residential parent for the parties’ three children.

Mother filed a response and counter-petition to relocate with the children.

Following a hearing, the trial court denied Mother’s proposed relocation. The trial court found Mother was estopped from invoking the parental relocation statute — Tennessee Code Annotated § 36-6-108 — because of the agreed restraint against relocation in the parenting plan. The trial court then designated Father the primary residential parent and awarded visitation to Mother.

Mother filed a motion to alter or amend alleging, in relevant part, that the trial court failed to conduct a best interest analysis pursuant to the relocation statute. Following a hearing on the motion, the trial court agreed to conduct a best interest analysis. After making specific findings regarding the relevant factors under the parental relocation statute, the trial court found the relocation was not in the children’s best interests. The trial court further stated its earlier order was modified to include the best interest analysis as an alternative basis for the denial of Mother’s relocation request.

Mother appealed.

On Appeal: The Court of Appeals reversed in part and affirmed in part.

Estoppel. Mother first argued the trial court applied an incorrect legal standard by enforcing the anti-relocation provision in the parenting plan.

Tennessee Code Annotated § 36-6-108 provides a framework for parents and courts to determine whether a child’s relocation should be permitted. The statute creates a presumption in favor of the relocating custodial parent who spends substantially more time with the child than the non-custodial parent. However, if the parents are actually spending substantially equal intervals of time with the child, there is no presumption in favor of or against the request to relocate. In such circumstance, the decision on whether to permit relocation of the child is to be based on the best interests of the child.

Tennessee law provides that the terms in a divorce decree that pertain to the care, custody, and control of minor children shall remain within the control of the court and be subject to such changes or modifications as the exigencies of the case may require. When parents contract upon issues that remain within the jurisdiction of the court, the agreement of the parties becomes merged into the decree and loses its contractual nature. The reason for stripping the agreement of the parties of its contractual nature is the continuing statutory power of the court to modify its terms consistent with changed circumstances.

After reviewing the record, the Court reversed the trial court’s ruling that the anti-relocation provision in the parenting plan prevented Mother from seeking to relocate with the children. The Court explains:

[T]he relocation provision in the parenting plan which mandated that “the children shall reside primarily with the party remaining so as to keep the children in the Lincoln County School System” lost its contractual nature when it merged into the final decree of divorce. Moreover, issues concerning the care, custody, and control of the minor children remain subject to the court’s continuing jurisdiction, so that they may be modified as circumstances change. Accordingly, Mother was not estopped to relocate. As Tennessee Code Annotated § 36-6-108(c) mandates, whether Mother should be permitted to relocate must be based on the applicable best interest factors, not an unenforceable agreed upon restraint on relocation. Therefore, we reverse the trial court’s ruling that Mother was estopped to relocate based on the relocation provision in the parenting plan.

Best interests. Mother also argued the evidence preponderates against the trial court’s findings of fact upon which it concluded that the proposed relocation was not in the children’s best interests.

In the trial court’s best interest analysis, it made the following finding:

Factor eight (8), the home, school and community record of the children also weighs heavily against relocation. It is in the children’s best interests to remain in the community where they have lived their whole lives where they have been surrounded by their parents and by an extended family that cares deeply for them and is invested in their success. This is especially true in light of Paragraph J of the Permanent Parenting Plan where the parties clearly contemplated the children remaining in the Lincoln County School system. This factor weighs heavily against relocation.

The Court affirmed the trial court’s best interest assessment, explaining:

It is readily apparent that some of the trial court’s findings were influenced to varying degrees by Paragraph J of the parenting plan, wherein the parties agreed in 2009 that if one of them moved away, the parent who remained in Lincoln County would be the primary residential parent. Having already concluded that the relocation provision is unenforceable, it would be error for the trial court to implicitly enforce Paragraph J. Nevertheless, it is undisputed that the parents were in agreement in 2009 that it was in the children’s best interests to reside primarily with the parent remaining in Lincoln County. Thus, we find no error with the trial court including this undisputed fact within its findings of fact. Further, we find no error with the trial court’s statement: “While it is clear to the Court that it retains the jurisdiction over the best interest of minor children, what is less clear is why the Court should just ignore the considered judgment of parents who agreed that education in the Lincoln County School System was of a paramount concern of theirs.” Contrary to Mother’s contention, the trial court was not required to ignore the considered judgment of the parents in 2009 when they agreed to Paragraph J. Thus, we have concluded that the trial court acted appropriately by considering that fact along with the parents’ respective explanations of why Paragraph J was or was not in the children’s best interests at the time of trial, along with all other relevant factors, to determine what was in the children’s best interests when the case was tried in 2014….

In this case, there is no statutory presumption for or against relocation and the best interest factors weigh against relocation. Therefore, having reviewed the record and each of the trial court’s findings, we affirm the trial court’s decision to deny Mother’s request to relocate with the children.

Accordingly, the trial court’s estoppel ruling was reversed but its best interest analysis was affirmed.

K.O.’s Comment: Anti-relocation provisions in agreed parenting plans are not uncommon. This case plainly holds such provisions are unenforceable.

So what is one to do? I suggest a statement noting the parents’ agreement as to the specific reasons why they agree future relocation will not be in their child’s best interest. While such a statement won’t be dispositive of a future request for relocation, it may be afforded great weight in the best interest analysis, as happened here.

Most importantly, clients must be made aware of the limited utility of such anti-relocation provisions.

Self v. Self (Tennessee Court of Appeals, Middle Section, September 23, 2015).

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

Posted by: koherston | October 2, 2015

Photo of the Week: Sea Lions on Rocks


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

Facts: Mother and Father divorced after 12 years of marriage. The parenting plan awarded Father 150 days of parenting time “on all his days off.”

Not surprising, such vague language proved problematic. Mother later moved to modify the parenting plan to specifically designate Father’s parenting time.

not happyAfter a break in the hearing on Mother’s motion, the parties announced their agreement to the trial court. Counsel for the parties recited the details of the parties’ agreement as to Father’s parenting time. Both parties were present when the agreement was announced in court. The trial court accepted the agreed parenting schedule and entered an order consistent with the announcement.

A few weeks later, Father obtained new counsel and filed a motion seeking to repudiate the agreement announced in court. Father alleged he was “not happy with” the agreement and no longer agreed with it. Notably, Father complained the trial court failed to find the agreed parenting schedule was in the child’s best interest.

The trial court denied Father’s motion. Father appealed.

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

Father argued the trial court’s order reflecting the agreed disposition announced in open court is flawed because it fails to include findings regarding the child’s best interests.

Although parties may reach an agreement to modify an existing parenting arrangement, they cannot bind courts to approve agreements affecting a child’s best interests.

Tennessee law imposes a duty on trial courts to protect the best interests of children. Although parties may agree to a given parenting arrangement, such an agreement does not obviate the trial court’s duty to ensure that it is in the children’s best interests.

After reviewing the record, the Court agreed with Father’s argument, explaining:

Although it is true that the trial judge concluded the [motion] hearing by remarking that he was glad the parties had been able to work out their dispute “for the best interest of the child,” there is no other discussion on the issue of the child’s best interests. The record is simply devoid of sufficient findings that reflect the trial judge performed the solemn duty that is entrusted to him alone. It is not even entirely clear from the trial judge’s concluding oral statement whether he considered the agreement to be in the child’s best interests. Arguably, his statement can be construed as expressing his satisfaction that the parties had been able to reach a resolution on the best interest issue. The delegation of such an issue is not permissible.

Given the trial court’s failure to conduct an appropriate best interests analysis, we conclude that it erred in denying Father’s [] motion to alter or amend or vacate. That motion alerted the trial court to the fact that its [] order lacked findings on the best interests issue, but the trial court never cured this error. Although the absence of findings on the best interests issue requires us to remand the case, we do not believe it is appropriate to remand this case for the sole purpose of allowing the trial court to explain why the agreed-upon parenting terms are in the child’s best interests. Having reviewed the record transmitted to us, we are compelled to remand not only for appropriate findings, but also for an evidentiary hearing on the best interests issue…. Under the circumstances presented, we find it appropriate to remand this case to the trial court to hold a hearing on and to make detailed findings of whether or not the agreed-upon terms of the modified parenting plan are in the minor child’s best interests….

[T]he trial court’s best interests determination should consider the circumstances of the parties and minor child as they exist as of the date of the hearing on remand.

The trial court is in the unique position to determine the nature and extent of the hearing to be conducted…. [T]he record must simply reflect a sufficient basis for determining whether the agreed-upon parenting arrangement is in the best interests of the child…. Although we are remanding for a hearing, we do not express an opinion on the particular evidence that is to be heard or considered on remand. We simply hold that the record must reflect a sufficient basis for making the bests interests determination.

Accordingly, the trial court’s ruling was reversed and the matter remanded to the trial court for an evidentiary hearing.

K.O.’s Comment: The Court here relied on the opinions in Tuetken v. Tuetken and Fletcher v. Fletcher for guidance.

When parents announce their agreed resolution of a parenting schedule dispute, it is clear that (1) the trial court must make the specific finding that the agreement is in the child’s best interest, and (2) there must be a sufficient evidentiary basis in the record for the trial court’s determination.

Is an evidentiary hearing required? How much evidence is “sufficient” to support the best interest finding?

To insulate an agreement from subsequent attack, family law attorneys would be wise to build an evidentiary record supporting the best interest finding. Without it, a parent’s change of heart can lead to additional litigation down the road.

Stricklin v. Stricklin (Tennessee Court of Appeals, Western Section, September 21, 2015).

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

Posted by: koherston | September 28, 2015

Study Shows What Makes Long-Term Marriages Work

This article by Emily Esfahani Smith in The Atlantic may be of interest to readers of this blog.

Masters of Love

Science says lasting relationships come down to—you guessed it—kindness and generosity.

Every day in June, the most popular wedding month of the year, about 13,000 American couples will say “I do,” committing to a lifelong relationship that will be full of friendship, joy, and love that will carry them forward to their final days on this earth.

Except, of course, it doesn’t work out that way for most people. The majority of marriages fail, either ending in divorce and separation or devolving into bitterness and dysfunction. Of all the people who get married, only three in ten remain in healthy, happy marriages, as psychologist Ty Tashiro points out in his book The Science of Happily Ever After, which was published earlier this year.

Social scientists first started studying marriages by observing them in action in the 1970s in response to a crisis: Married couples were divorcing at unprecedented rates. Worried about the impact these divorces would have on the children of the broken marriages, psychologists decided to cast their scientific net on couples, bringing them into the lab to observe them and determine what the ingredients of a healthy, lasting relationship were. Was each unhappy family unhappy in its own way, as Tolstoy claimed, or did the miserable marriages all share something toxic in common?

“Disaster” couples showed signs of being in fight-or-flight mode in their relationships. Having a conversation sitting next to their spouse was, to their bodies, like facing off with a saber-toothed tiger.

Psychologist John Gottman was one of those researchers. For the past four decades, he has studied thousands of couples in a quest to figure out what makes relationships work. I recently had the chance to interview Gottman and his wife Julie, also a psychologist, in New York City. Together, the renowned experts on marital stability run The Gottman Institute, which is devoted to helping couples build and maintain loving, healthy relationships based on scientific studies.

John Gottman began gathering his most critical findings in 1986, when he set up “The Love Lab” with his colleague Robert Levenson at the University of Washington. Gottman and Levenson brought newlyweds into the lab and watched them interact with each other. With a team of researchers, they hooked the couples up to electrodes and asked the couples to speak about their relationship, like how they met, a major conflict they were facing together, and a positive memory they had. As they spoke, the electrodes measured the subjects’ blood flow, heart rates, and how much they sweat they produced. Then the researchers sent the couples home and followed up with them six years later to see if they were still together.

From the data they gathered, Gottman separated the couples into two major groups: the masters and the disasters. The masters were still happily together after six years. The disasters had either broken up or were chronically unhappy in their marriages. When the researchers analyzed the data they gathered on the couples, they saw clear differences between the masters and disasters. The disasters looked calm during the interviews, but their physiology, measured by the electrodes, told a different story. Their heart rates were quick, their sweat glands were active, and their blood flow was fast. Following thousands of couples longitudinally, Gottman found that the more physiologically active the couples were in the lab, the quicker their relationships deteriorated over time.

But what does physiology have to do with anything? The problem was that the disasters showed all the signs of arousal—of being in fight-or-flight mode—in their relationships. Having a conversation sitting next to their spouse was, to their bodies, like facing off with a saber-toothed tiger. Even when they were talking about pleasant or mundane facets of their relationships, they were prepared to attack and be attacked. This sent their heart rates soaring and made them more aggressive toward each other. For example, each member of a couple could be talking about how their days had gone, and a highly aroused husband might say to his wife, “Why don’t you start talking about your day. It won’t take you very long.”

The masters, by contrast, showed low physiological arousal. They felt calm and connected together, which translated into warm and affectionate behavior, even when they fought. It’s not that the masters had, by default, a better physiological make-up than the disasters; it’s that masters had created a climate of trust and intimacy that made both of them more emotionally and thus physically comfortable.

Gottman wanted to know more about how the masters created that culture of love and intimacy, and how the disasters squashed it. In a follow-up study in 1990, he designed a lab on the University of Washington campus to look like a beautiful bed and breakfast retreat. He invited 130 newlywed couples to spend the day at this retreat and watched them as they did what couples normally do on vacation: cook, clean, listen to music, eat, chat, and hang out. And Gottman made a critical discovery in this study—one that gets at the heart of why some relationships thrive while others languish.

Throughout the day, partners would make requests for connection, what Gottman calls “bids.” For example, say that the husband is a bird enthusiast and notices a goldfinch fly across the yard. He might say to his wife, “Look at that beautiful bird outside!” He’s not just commenting on the bird here: he’s requesting a response from his wife—a sign of interest or support—hoping they’ll connect, however momentarily, over the bird.

The wife now has a choice. She can respond by either “turning toward” or “turning away” from her husband, as Gottman puts it. Though the bird-bid might seem minor and silly, it can actually reveal a lot about the health of the relationship. The husband thought the bird was important enough to bring it up in conversation and the question is whether his wife recognizes and respects that.

People who turned toward their partners in the study responded by engaging the bidder, showing interest and support in the bid. Those who didn’t—those who turned away—would not respond or respond minimally and continue doing whatever they were doing, like watching TV or reading the paper. Sometimes they would respond with overt hostility, saying something like, “Stop interrupting me, I’m reading.”

These bidding interactions had profound effects on marital well-being. Couples who had divorced after a six-year follow up had “turn-toward bids” 33 percent of the time. Only three in ten of their bids for emotional connection were met with intimacy. The couples who were still together after six years had “turn-toward bids” 87 percent of the time. Nine times out of ten, they were meeting their partner’s emotional needs.

* * *

By observing these types of interactions, Gottman can predict with up to 94 percent certainty whether couples—straight or gay, rich or poor, childless or not—will be broken up, together and unhappy, or together and happy several years later. Much of it comes down to the spirit couples bring to the relationship. Do they bring kindness and generosity; or contempt, criticism, and hostility?

“There’s a habit of mind that the masters have,” Gottman explained in an interview, “which is this: they are scanning social environment for things they can appreciate and say thank you for. They are building this culture of respect and appreciation very purposefully. Disasters are scanning the social environment for partners’ mistakes.”

Contempt is the number one factor that tears couples apart.

“It’s not just scanning environment,” chimed in Julie Gottman. “It’s scanning the partner for what the partner is doing right or scanning him for what he’s doing wrong and criticizing versus respecting him and expressing appreciation.”

Contempt, they have found, is the number one factor that tears couples apart. People who are focused on criticizing their partners miss a whopping 50 percent of positive things their partners are doing and they see negativity when it’s not there. People who give their partner the cold shoulder—deliberately ignoring the partner or responding minimally—damage the relationship by making their partner feel worthless and invisible, as if they’re not there, not valued. And people who treat their partners with contempt and criticize them not only kill the love in the relationship, but they also kill their partner’s ability to fight off viruses and cancers. Being mean is the death knell of relationships.

Kindness, on the other hand, glues couples together. Research independent from theirs has shown that kindness (along with emotional stability) is the most important predictor of satisfaction and stability in a marriage. Kindness makes each partner feel cared for, understood, and validated—feel loved. “My bounty is as boundless as the sea,” says Shakespeare’s Juliet. “My love as deep; the more I give to thee, / The more I have, for both are infinite.” That’s how kindness works too: there’s a great deal of evidence showing the more someone receives or witnesses kindness, the more they will be kind themselves, which leads to upward spirals of love and generosity in a relationship.

There are two ways to think about kindness. You can think about it as a fixed trait: either you have it or you don’t. Or you could think of kindness as a muscle. In some people, that muscle is naturally stronger than in others, but it can grow stronger in everyone with exercise. Masters tend to think about kindness as a muscle. They know that they have to exercise it to keep it in shape. They know, in other words, that a good relationship requires sustained hard work.

“If your partner expresses a need,” explained Julie Gottman, “and you are tired, stressed, or distracted, then the generous spirit comes in when a partner makes a bid, and you still turn toward your partner.”

In that moment, the easy response may be to turn away from your partner and focus on your iPad or your book or the television, to mumble “Uh huh” and move on with your life, but neglecting small moments of emotional connection will slowly wear away at your relationship. Neglect creates distance between partners and breeds resentment in the one who is being ignored.

The hardest time to practice kindness is, of course, during a fight—but this is also the most important time to be kind. Letting contempt and aggression spiral out of control during a conflict can inflict irrevocable damage on a relationship.

“Kindness doesn’t mean that we don’t express our anger,” Julie Gottman explained, “but the kindness informs how we choose to express the anger. You can throw spears at your partner. Or you can explain why you’re hurt and angry, and that’s the kinder path.”

John Gottman elaborated on those spears: “Disasters will say things differently in a fight. Disasters will say ‘You’re late. What’s wrong with you? You’re just like your mom.’ Masters will say ‘I feel bad for picking on you about your lateness, and I know it’s not your fault, but it’s really annoying that you’re late again.’”

* * *

For the hundreds of thousands of couples getting married this month—and for the millions of couples currently together, married or not—the lesson from the research is clear: If you want to have a stable, healthy relationship, exercise kindness early and often.

“A lot of times, a partner is trying to do the right thing even if it’s executed poorly. So appreciate the intent.”

When people think about practicing kindness, they often think about small acts of generosity, like buying each other little gifts or giving one another back rubs every now and then. While those are great examples of generosity, kindness can also be built into the very backbone of a relationship through the way partners interact with each other on a day-to-day basis, whether or not there are back rubs and chocolates involved.

One way to practice kindness is by being generous about your partner’s intentions. From the research of the Gottmans, we know that disasters see negativity in their relationship even when it is not there. An angry wife may assume, for example, that when her husband left the toilet seat up, he was deliberately trying to annoy her. But he may have just absent-mindedly forgotten to put the seat down.

Or say a wife is running late to dinner (again), and the husband assumes that she doesn’t value him enough to show up to their date on time after he took the trouble to make a reservation and leave work early so that they could spend a romantic evening together. But it turns out that the wife was running late because she stopped by a store to pick him up a gift for their special night out. Imagine her joining him for dinner, excited to deliver her gift, only to realize that he’s in a sour mood because he misinterpreted what was motivating her behavior. The ability to interpret your partner’s actions and intentions charitably can soften the sharp edge of conflict.

“Even in relationships where people are frustrated, it’s almost always the case that there are positive things going on and people trying to do the right thing,” psychologist Ty Tashiro told me. “A lot of times, a partner is trying to do the right thing even if it’s executed poorly. So appreciate the intent.”

Another powerful kindness strategy revolves around shared joy. One of the telltale signs of the disaster couples Gottman studied was their inability to connect over each other’s good news. When one person in the relationship shared the good news of, say, a promotion at work with excitement, the other would respond with wooden disinterest by checking his watch or shutting the conversation down with a comment like, “That’s nice.”

We’ve all heard that partners should be there for each other when the going gets rough. But research shows that being there for each other when things go right is actually more important for relationship quality. How someone responds to a partner’s good news can have dramatic consequences for the relationship.

In one study from 2006, psychological researcher Shelly Gable and her colleagues brought young adult couples into the lab to discuss recent positive events from their lives. They psychologists wanted to know how partners would respond to each other’s good news. They found that, in general, couples responded to each other’s good news in four different ways that they called: passive destructive, active destructive, passive constructive, and active constructive.

Let’s say that one partner had recently received the excellent news that she got into medical school. She would say something like “I got into my top choice med school!”

Those who showed genuine interest in their partner’s joys were more likely to be together.

If her partner responded in a passive destructive manner, he would ignore the event. For example, he might say something like: “You wouldn’t believe the great news I got yesterday! I won a free t-shirt!”

If her partner responded in a passive constructive way, he would acknowledge the good news, but in a half-hearted, understated way. A typical passive constructive response is saying “That’s great, babe” as he texts his buddy on his phone.

In the third kind of response, active destructive, the partner would diminish the good news his partner just got: “Are you sure you can handle all the studying? And what about the cost? Med school is so expensive!”

Finally, there’s active constructive responding. If her partner responded in this way, he stopped what he was doing and engaged wholeheartedly with her: “That’s great! Congratulations! When did you find out? Did they call you? What classes will you take first semester?”

Among the four response styles, active constructive responding is the kindest. While the other response styles are joy-killers, active constructive responding allows the partner to savor her joy and gives the couple an opportunity to bond over the good news. In the parlance of the Gottmans, active constructive responding is a way of “turning toward” your partners bid (sharing the good news) rather than “turning away” from it.

Active constructive responding is critical for healthy relationships. In the 2006 study, Gable and her colleagues followed up with the couples two months later to see if they were still together. The psychologists found that the only difference between the couples who were together and those who broke up was active constructive responding. Those who showed genuine interest in their partner’s joys were more likely to be together. In an earlier study, Gable found that active constructive responding was also associated with higher relationship quality and more intimacy between partners.

There are many reasons why relationships fail, but if you look at what drives the deterioration of many relationships, it’s often a breakdown of kindness. As the normal stresses of a life together pile up—with children, career, friend, in-laws, and other distractions crowding out the time for romance and intimacy—couples may put less effort into their relationship and let the petty grievances they hold against one another tear them apart. In most marriages, levels of satisfaction drop dramatically within the first few years together. But among couples who not only endure, but live happily together for years and years, the spirit of kindness and generosity guides them forward.

Source: Masters of Love (The Atlantic, June 12, 2014).

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

Posted by: koherston | September 25, 2015

Photo of the Week: Sea Otter Taxi Service


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

Facts: Mother and Father are the divorced parents of two children. When they divorced, the trial court entered an agreed permanent parenting plan granting equal parenting time to each parent on an alternating week basis but designated Mother the primary residential parent of both children.

circular reasoningYears later, the relationship between Mother and Daughter became strained, and the parties agreed to let Daughter stay exclusively with Father for an extended period of time. Months later, Father filed a petition for modification of custody. He proposed that Mother’s parenting time occur on alternating weekends and certain holidays.

Father criticized Mother’s belief that the children were old enough to stay at home alone in the afternoons. He also introduced Daughter’s testimony that she would prefer to live with Father for various reasons.

After considering all the evidence, the trial court concluded that Father failed to demonstrate a material change of circumstances. As such, the trial court denied Father’s petition to modify the parenting plan.

The trial court attached to its ruling an unsigned parenting plan it would have entered if a material change of circumstances had taken place. The unsigned plan designated Father the primary residential parent of both children and granted Mother 141 days of parenting time each year.

Father appealed.

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

At the time of a divorce involving at least one minor child, the trial court must make an initial custody determination on the basis of the best interests of the child. When a parent files a petition to modify custody, the parent seeking the modification must demonstrate that a material change in circumstances has occurred, which makes a change in custody in the child’s best interests. Thus, the decision to modify custody is a two-part test.

As a threshold issue, the trial court must determine whether there has been a material change in circumstances since the previous custody determination. If the court finds that a material change in circumstances has occurred, the court must proceed to the second step of the analysis to determine whether the modification sought is in the child’s best interest. If the court finds that a material change in circumstances has not occurred, it is not required to make a best interests determination and must deny the request for a change of custody.

Tennessee Code Annotated § 36-6-101(a)(2)(B) sets forth the standard a petitioning parent must meet to prove a material change in circumstance sufficient for consideration of whether custody modification is in the best interest of the child:

(B) If the issue before the court is a modification of the court’s prior decree pertaining to custody, the petitioner must prove by a preponderance of the evidence a material change in circumstance. A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.

Although there are no bright-line rules for determining whether such a change has occurred, there are several relevant considerations: (1) whether the change occurred after the entry of the order sought to be modified; (2) whether the change was not known or reasonably anticipated when the order was entered; and (3) whether the change is one that affects the child’s well-being in a meaningful way.

Father argued that the trial court’s unsigned parenting plan designating him as the primary residential parent shows the trial court found it to be in the children’s best interest that Father be designated the primary residential parent. Father contended this implicit finding triggered Tennessee Code Annotated § 36-6-101(a)(2)(B), which states that a material change of circumstance may include “circumstances that make the parenting plan no longer in the best interest of the child.”

In other words, Father argued that the finding that a modification would be a child’s best interest constitutes a material change of circumstances in and of itself.

After reviewing the record, the Court commented:

Father’s argument is premised on an interpretation of Section 36-6-101(a)(2)(B) that would allow petitioning parents to prove a material change of circumstances by establishing that modification is in the child’s best interest. This interpretation of the statute, however, would nullify the material change of circumstances prong of the two-part test to modify custody. Although, meeting the best interests of the child is an overarching concern in allocating parental responsibilities following a divorce, the material change of circumstances requirement serves an important purpose. The concept of requiring a parent seeking modification to prove a material change in circumstances originated out of this Court’s recognition that existing parenting orders are considered res judicata on the facts as they existed at the time that the most recent order was entered. In that regard, the requirement “promotes finality, prevents inconsistent or contradictory judgments, conserves judicial resources, and protects litigants from the cost and vexation of multiple lawsuits.” It would be a great inconvenience to the litigants, the courts, and the public, if either party, as often as he or she chose, could re-litigate questions of custody or support on the same or substantially similar facts. Additionally, the requirement serves the courts’ interests in preserving stable custodial relationships for the child and discouraging divorced parents from using the child as a pawn in their ongoing conflicts through repeated petitions to modify custody. As such, we reject Father’s argument. The decision to modify custody is a two-part test, and a petitioning parent must prove each part separately before a prior custody determination may be modified. Accordingly, we conclude that because Father failed to prove a material change of circumstances in this case, the trial court correctly denied his petition to modify.

Accordingly, the trial court’s judgment was affirmed.

K.O.’s Comment: Kudos to Father’s lawyer for asserting a rather creative argument. As the Court noted, if decisions to modify custody were based solely on meeting the child’s best interests without regard for whether a material change of circumstances had occurred, parents could force modification of their custody arrangement as often as the child’s custodial preference changed in a case where the other best interest factors weighed equally in favor of each parent. The requirement that petitioning parents demonstrate a material change of circumstances prevents such a scenario.

Canada v. Canada (Tennessee Court of Appeals, Western Section, September 4, 2015).

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

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