Is it already time to do another legislative update post? Ugh. Grab some booze. Let’s get this over with. 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: 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: 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: “Harass or maliciously injure” is defined to mean the plaintiff sued with the intent to: 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. 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!
I 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.
Tennessee Family Law Legislative Update 2018 was last modified: June 6th, 2018 by
From Memphis, TN I want to thank each and every person involved in getting this bill passed into law!!! If I could shake your hand or hug your neck, I I would right this moment!!! I look forward to more peaceful, quality of life.
Sincerely,
Amy Marie Jackson
Memphis, TN