Tennessee Family Law Legislative Update 2018

Is it already time to do another legislative update post? Ugh.

Grab some booze. Let’s get this over with.

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Parental relocation. Parental relocation cases have been analyzed under two approaches: one when the parents exercise substantially equal parenting time and one when they do not. That led to a large body of caselaw defining reasonable purpose, vindictive motive, specific harm, etc. Well, forget everything you learned about that because it’s all gone.

Public Chapter 853 amends Tennessee Code Annotated § 36-6-108 to provide one analysis in every case: the child’s best interest. There is no other issue. From now on, the only question in parental relocation cases is whether it is in the child’s best interest to relocate with the moving parent. Every case will be decided by the answer to that question.

As the Tennessee Supreme Court observed last year in Aragon, the statutory structure and legislative history of the now-former relocation statute “indicate[d] an intent to make relocation cases relatively clear-cut.” This was true when parents were not exercising substantially equal time. Judges and lawyers should expect increased litigation and more trials in parental relocation cases.

Attorney’s fees. Tennessee Code Annotated § 36-5-103(c) has been rewritten by Public Chapter 905. The new provision—with noteworthy additions in bold—reads:

A prevailing party may recover reasonable attorney’s fees, which may be fixed and allowed in the court’s discretion, from the non-prevailing party in any criminal or civil contempt action or other proceeding to enforce, alter, change, or modify any decree of alimony, child support, or provision of a permanent parenting plan order, or in any suit or action concerning the adjudication of the custody or change of custody of any children, both upon the original divorce hearing and at any subsequent hearing.

Termination of parental rights and adoption. Public Chapter 875 makes several technical corrections and relatively minor changes to the termination and adoption statutes, along with these significant changes:

  • The form for the voluntary surrender of parental rights has been simplified.
  • The abandonment ground for termination of parental rights no longer requires the petitioner to prove by clear-and-convincing evidence that the parents’ failure to visit or support during the four-month period was willful. Instead, the parent must plead the absence of willfulness as an affirmative defense and prove that defense by a preponderance of the evidence.

Interest on child-support arrearages. Public Chapter 1049 further complicates the law governing interest on child-support arrearages.

As of April 17, 2017, interest no longer accrues on child-support arrearages unless the court makes a written finding that it should. If that finding is made, the court can set the interest rate at up to 4%. As I wrote in last year’s legislative update, that was terrible news for Tennessee children with deadbeat parents.

Once again bowing to the whims of a handful of assistant district attorneys in rural counties who are paid to enforce child-support orders and feel they are overworked (which may be true), the legislature created two methods of calculating interest on arrearages with the only distinguishing characteristic being whether or not the case is a Title IV-D case.

In non-Title IV-D cases, interest shall accrue at the rate of 6%, although the court has the discretion to reduce it all the way to zero.

In Title IV-D cases, i.e., the cases certain prosecutors in rural counties are paid to handle, “interest shall not accrue on arrearages” unless the court makes a written finding that it should, in which case the court can set the interest rate at up to 6%.

This has everything to do with making life easier for lawyers and judges and nothing to do with Tennessee children who are going without basic necessities. The legislature has removed the economic incentive for the prompt payment of child support. Instead of allocating resources to ease the burden of enforcing child-support orders, the legislature made it easier to ignore them. In fact, in many cases ignoring one’s child-support obligation is the economically rational decision to make. It’s outrageous.

The proponents of last year’s changes promised that slashing interest on child-support arrearages would lead to more child support being paid. They said they would repeal the changes if the data failed to show this to be true. Any bets on whether that will happen?

Child marriage. Public Chapter 1049 also changes the requirements for marrying children. County clerks cannot issue a marriage license where (1) either party is younger than 17, or (2) a 17-year-old attempts to marry someone 21 or older. This went into effect May 21, 2018.

Miscellaneous. Here are some quickies:

  • Public Chapter 742 says a court can require a parent to maintain health insurance and pay uncovered medical expenses for “each child of the marriage” only “if reasonable and affordable health insurance is available.” Duh. What about children of unmarried parents?
  • Public Chapter 747 protects teachers and school counselors from having to testify in family-law matters, even at a deposition, unless the court determines that the witness’s attendance is necessary. This went into effect April 18, 2018.
  • Public Chapter 734 says that grandparent visitation cases can now be heard in any court “with domestic relations jurisdiction.” This went into effect April 18, 2018.
  • Public Chapter 729 provides that the court in an order-of-protection matter can order a mobile phone service provider to transfer the billing responsibility for and rights to the wireless telephone numbers of the petitioner. This went into effect April 18, 2018.

drinkingI don’t even know where to begin, a.k.a., this would be a good time to start drinking if you haven’t already. Public Chapter 872 creates a new affirmative defense in any litigation between former spouses, former cohabitants, former sexual partners, relatives, or their adult children.

In litigation between these specific categories of people, the defendant can raise the affirmative defense that the plaintiff filed an “abusive civil action” and request it be dismissed, receive an award of attorney’s fees, and ask that the plaintiff be prohibited from filing any other litigation for the next 2-3 years without first getting court approval.

What constitutes an “abusive civil action”? That would be a lawsuit “filed . . . primarily to harass or maliciously injure” the other party that has at least one characteristic:

  • the allegations are not warranted by existing law or by a reasonable argument for the modification of existing law;
  • the allegations lack evidentiary support; or
  • the issues have been litigated and the rulings were unfavorable to the plaintiff.

“Harass or maliciously injure” is defined to mean the plaintiff sued with the intent to:

  • adversely affect the defendant’s financial resources unless “a change in the circumstances of the parties provides a good faith basis to seek a change to a financial award, support, or distribution of resources”;
  • interfere with the ability of the defendant to raise a child;
  • attempt to force or coerce the defendant to make adverse concessions on issues previously litigated and decided for the defendant;
  • attempt to force or coerce the defendant to engage in or not engage in conduct that is a lawful;
  • adversely affect the ability of the defendant to maintain the same lifestyle; or
  • tarnish the defendant’s reputation or alienate the defendant’s friends by subjecting third parties who are “not reasonably relevant” to the lawsuit to “unnecessarily complex, lengthy, or intrusive interrogatories or depositions.”

First, Tennessee law already provides remedies for frivolous lawsuits (Rule 11), disputes already resolved (issue/claim preclusion), and vexatious litigants. All the remedies in this bill are already available to aggrieved parties under existing law.

Second, I do not have the time to unpack all the ways in which this is stupid.

According to this video from the Senate, this legislation was motivated by how some unnamed “local official in Roane County” felt they’d been abused by a former spouse or lover’s post-relationship litigation.

why are you so mean

The fact is everyone involved in family-law litigation perceives at some point during the process that the other party is being unfair or operating in bad faith. Not every unpleasant thing in life can be solved by the legislature (although the unpleasant things mentioned in this legislation already have a remedy at law). Your ex behaving in a way you don’t like or can’t control in the midst of family-law litigation is one of those things. That’s life.

Unless noted otherwise above, the new laws go into effect July 1, 2018.

Until next year, cheers!

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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