Posted by: koherston | August 22, 2011

2011 Tennessee Legislative Update Part II

More on new family law legislation from the Tennessee Legislature in 2011:

Orders of Protection. A new law specifies that an ex parte order of protection issued to protect the petitioner from domestic abuse, stalking, or domestic assault may require the respondent to immediately vacate the residence shared with the petitioner, pending a hearing on the matter. 2011 PC 253, effective 5/23/11. Author’s Comment: Previously, this relief could only be granted after a hearing. Now it can be granted on an ex parte basis. My only quarrel is the way it was drafted, i.e., adding a new subsection instead of simply modifying the existing subsection that limited this relief to after a hearing. Perhaps I’m being picky. Or perhaps I think statutes should be easy to read.

A new law authorizes a court to assess attorney’s fees and court costs against a petitioner seeking an order of protection if the court does not issue or extend the order of protection and if the court finds by clear and convincing evidence that the petitioner knew the allegation of domestic abuse, stalking, or sexual assault was false at the time the petition was filed. The act also provides the court may direct the respondent to pay the petitioner’s costs and expenses related to the petitioner’s breach of a lease for residential property if the court finds that continuing to reside in the rented premises may jeopardize the life, health, and safety of the petitioner or the petitioner’s children. 2011 PC 402, effective 6/6/11. Author’s Comment: I predict there will be a grand total of zero instances in the next five years where a court will find by clear and convincing evidence that a petitioner knowingly brought a false claim. I’m not saying it doesn’t happen. My prediction is limited to a court making that finding under this new statute. Time will tell. I do predict a large increase in arguments for attorney’s fees from victorious respondents, however. The provision about lease reimbursement makes sense.

A new law authorizes a magistrate, in the case of a defendant who is arrested for violating an order of protection to require the defendant to carry or wear a global positioning monitoring system device, and, if able, to pay the costs associated with operating that device and the electronic receptor device provided to the victim. 2011 PC 406, effective 7/1/11. Author’s Comment: This makes sense in certain cases.

Child abuse. A new law redefines “severe child abuse” as a knowing exposure of a child to, or a knowing failure to protect a child from, abuse or neglect that is likely to cause the child “serious bodily injury” (instead of the former “great bodily harm”) or death and the knowing use of force on a child that is likely to cause the child “serious bodily injury” (instead of the former “great bodily harm”) or death. The act also adds the offenses of aggravated child abuse and aggravated child neglect or endangerment to the list of unlawful acts toward a child that are considered to be “severe child abuse.” The act clarifies that “serious bodily injury” includes second-degree or third-degree burns, the fracture of any bone, a concussion, subdural or subarachnoid bleeding, retinal hemorrhage, cerebral edema, a brain contusion, and injuries to the skin that involve severe bruising or the likelihood of permanent or protracted disfigurement, including those sustained by whipping children with objects. 2011 PC 314, effective 5/27/11. Author’s Comment: This clarification is helpful.

Juvenile court jurisdiction. A new law grants juvenile courts temporary jurisdiction to issue temporary orders upon a petition on behalf of a child present in that county. The act grants the court temporary jurisdiction only in neglect, dependency, or abuse cases, termination of parental rights cases, or cases related to an order of protection where the court determines court action is necessary to protect the child. 2011 PC 485, effective 7/1/11. Author’s Comment: This makes sense.

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


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