Posted by: koherston | May 18, 2015

Tennessee Family Law Legislative Update 2015

2015 was a quiet year for family law legislation in Tennessee. The Republican super-majority devoted it’s time to other issues such as preventing a floor vote on the Governor’s “Insure Tennessee” plan to expand Medicaid to low-income Tennesseans, imposing medically-unnecessary restrictions on women’s healthcare, or preventing local governments from prohibiting guns in local parks.

While the Legislature passed and the Governor signed several bills that change Tennessee family law, I think the following bills merit the attention of readers of this blog:

Public Chapter 113: This changes the time period in which a parent may revoke a voluntary surrender of parental rights from 10 days to three calendar days. Thus, now there is a three day period in which a parent may revoke a voluntary surrender of parental rights. This law became effective on April 10, 2015.

K.O.’s Comment: Given the gravity of the issues involved and the emotions that accompany a parent’s voluntary surrender of parental rights, I think the revocation period should have remained 10 days. I believe 10 days strikes the proper balance between the parent’s rights and the child’s interest in stability and finality.

Public Chapter 167: This eliminates any right to custody/visitation/inheritance for parents convicted of aggravated rape, rape or rape of a child that led to the child’s conception. It also permits the other parent to request reasonable visitation with the convicted parent and requires the establishment of a child obligation for the convicted parent.

Public Chapter 200: This allows parties to forgive a child support arrearage if the obligor had been paying as ordered for the preceding 12 months and the court approves the settlement. Money owed to the State cannot be forgiven, however. An obligor can only have an arrearage waived one time. If subsequent arrearages arise, they cannot be waived.

K.O.’s Comment: This is a significant change in the law of child support. Previously, courts held agreements waiving child support arrearages were against public policy. This new law specifically says such waiver “shall not be considered against public policy if the compromise and settlement is in the best interest of the child or children.” It will be interesting to see if a trial court ever finds it is in a child’s best interest not to receive money to which the child is entitled. Also, it appears the “mandatory” interest required by Tennessee Code § 36-5-101(f)(1) is not necessarily mandatory after all.

Public Chapter 202: This requires that the appreciation of premarital retirement and similar employment benefits be treated as separate property instead of marital property. Contributions made as a result of employment during the marriage and the appreciation attributable thereto will be treated as marital property. Commingling and transmutation analysis will not apply to marital appreciation of such premarital employment-related accounts. Trial courts are to use “any reasonable method of accounting to attribute post marital appreciation to the value of the premarital benefits.”

K.O.’s Comment: This is a significant change in the law of property classification. It overrules the Tennessee Supreme Court’s 4-1 decision in Snodgrass v. Snodgrass, 295 S.W.3d 240 (Tenn. 2009), which classified the marital appreciation of premarital employment-related retirement funds as marital property. Justice Wade’s dissenting opinion in Snodgrass lost the battle but won the war.

Public Chapter 236: In a custody case not involving the Department of Children’s Services, this prevents a court from returning a child to the custody of a parent when the child was removed “primarily” because of the parent’s drug abuse unless the parent demonstrates “a sustained commitment to responsible parenting.” It says the parent can demonstrate this “responsible parenting” by not being the subject of a criminal investigation for 90 days, resolving any investigations by child protective services, and passing two consecutive monthly drug screens paid for by the parent.

K.O.’s Comment: What does it mean to say one has not been the subject of a criminal investigation for at least 90 days? How does a parent satisfy that burden of proof? For all we know, anyone reading this might be the subject of a criminal investigation right now. It is not as though law enforcement tends to let one know when one is the subject of a criminal investigation. Because it is couched as pro-child and anti-drug, it passed both chambers unanimously. The Legislature needs to let trial courts figure out what is best for a child in an individual case and stop meddling with such one-size-fits-all legislation.

Public Chapter 237: This provides grounds to terminate a parent or guardian’s parental rights if the parent or guardian is convicted of sex trafficking of children.

Public Chapter 238: This prohibits a court from awarding custody to a parent who is under indictment for aggravated child abuse, sexual abuse of a child or severe child sexual abuse while the indictment remains pending. The parent may be awarded supervised visitation while the indictment is pending.

Public Chapter 247: This permits great-grandparents to petition a court for grandparent visitation. This law became effective April 24, 2015.

K.O.’s Comment: This law was signed three days after the Court of Appeals issued its opinion in In re Dayton R. holding that great-grandparents had standing to file a petition under the Grandparent Visitation Statute. Thus, while this was the law before this bill was signed, I suppose it is now really, really, really the law.

Public Chapter 320: This allows a trial court to admit into evidence the video of a forensic interview of a child conducted by an interviewer who is employed by a for-profit child advocacy center. This law became effective April 28, 2015.

Unless otherwise noted, these bills become effective July 1, 2015.

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


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