Tennessee Family Law Legislative Update 2019

Another year, another legislative session ends.

Not only does that mean it is time for the inevitable racist/sex scandals and FBI investigations into bribery and corruption that come after our legislators return home, but it’s also time for my annual legislative update!

Tennessee General Assembly

For the first time in the nine-year (!) history of this blog, the Tennessee Legislature managed to avoid its usual stupid, harmful, gross, unconscionable, WTF changes to Tennessee family law. They actually solved problems and made things better. It’s almost as if they listened to experts. Imagine that!

My annual recommendation to load up on alcohol before reading any further does NOT apply this year. You can safely continue reading while sober. Huzzah!

via GIPHY

And don’t forget to vote in the poll at the end of this post!

Adoption. Public Chapter 35 creates a new statute — Tennessee Code Annotated § 36-1-145 — that permits enforceable contracts between adoptive parents, biological parents, and adopted children at least 14 years old that govern visitation, contact, and sharing information. This statute went into effect on March 22, 2019.

Public Chapter 36 makes technical changes to various adoption laws.

Primary Residential Parent. Public Chapter 83 is intended to — and should — reduce the often needless litigation over the primary residential parent designation when parents share equal time. It adds this subsection to Tennessee Code Annotated § 36-6-410:

(b) Notwithstanding any law to the contrary, when the child is scheduled to reside in equal amounts of time with both parents, the parents may agree to a designation as joint primary residential parents or to waive the designation of a primary residential parent. In the absence of an agreement between the parties, a single primary residential parent must be designated; provided, that this designation shall not affect either parent’s rights and responsibilities under the parenting plan.

It also creates this new statute:

When the child is scheduled to reside in equal amounts of time with both parents, the address of either parent may be used to determine school zoning.

Parental disputes over school zoning are still subject to the decision-making provisions of the parenting plan and can be resolved by the court.

I have complained and complained and complained about the PRP designation in equal-time cases. I have seen people waste tens of thousands of dollars and create unnecessary conflict in equal-time cases to avoid the perceived stigma of not being designated as the PRP. This new law gives them a way out.

One question left unanswered is whether this will affect the analysis of which material change standard applies when modifying a parenting plan from joint PRPs or no PRPs to one PRP.

Child marriage. Public Chapter 93 requires that one be at least 17 years old to marry. Previously, 16-year-olds could marry with a parent’s consent.

Notice to relative caregivers. Public Chapter 130 creates a new statute that requires courts awarding custody of the child to a relative to notify the relative of resources and funding that may be available from the Department of Children’s Services.

Non-public information in public pleadings. Public Chapter 151 creates a new statute that requires that certain identifying information be omitted from pleadings “unless otherwise required by statute, court rule, or court order.” Pleadings filed with the court should only state

  • the last four digits of a Social Security number (instead of the entire number),
  • the year someone was born (instead of their birthdate),
  • a minor child’s initials (instead of the minor child’s name), and
  • the last four digits of a financial account number (instead of the whole account number).

Notably, this law does not apply to pleadings filed in juvenile court.

This law became effective on April 17, 2019.

Subject-matter jurisdiction between divorce courts and juvenile courts. Public Chapter 167 adds this provision to the statute itemizing a juvenile court’s exclusive original jurisdiction:

Notwithstanding this section, nothing in subdivision (a)(1) shall be construed to preclude a court from exercising domestic relations jurisdiction . . . , regardless of the nature of the allegations, unless and until a pleading is filed or relief is otherwise sought in a juvenile court invoking its exclusive original jurisdiction.

This is the legislative response to the confusion created by Cox v. Lucas. Last week, the Tennessee Supreme Court reversed the Court of Appeals in Cox v. Lucas because of this new law. I’ll cover that opinion here next week.

This law became effective on April 18, 2019.

Guardian ad litem fees in adoptions. Public Chapter 409 creates a presumption that the fees generated by a guardian ad litem in an adoption proceeding be divided equally between the parties. If a party is indigent, that party’s portion of the guardian’s fees is to be paid by the state, presumably at the reduced state rates. The law claims to promote adoption because, according to the bill, “parties are often discouraged from pursuing adoption due to the expense.”

This law became effective on May 21, 2019.

Fine for violating order of protection or restraining order. Public Chapter 422 modifies the law that makes it a crime to violate an order of protection or restraining order, Tennessee Code Annotated § 39-13-113(g), to now require the offender to pay a fine of at least $100 but not more than $2500.

Stepparent visitation. Public Chapter 431 rewrites the law governing stepparent visitation, Tennessee Code Annotated § 36-6-303.

Previously, a stepparent could receive visitation if the court found visitation to be in the best interest of the child and the stepparent paid child support.

Now, a stepparent must show “the presence of a danger of substantial mental, emotional, or physical harm to the child if the requested visitation” is not permitted. Only then does the court begin to analyze the child’s best interest. The law also says, “The best interest finding will only occur in extraordinary cases.”

The prior requirement that the stepparent contributes to the financial support of the child is removed.

This law gets my award for the most unnecessary, confusing, and poorly drafted family-law statute this session.

First, the petitioning stepparent must first show that the stepparent “maintained a significant relationship” with the child before the court can move on to consider the child’s best interest. Then the statute provides a list of best-interest factors that includes “[w]hether the [stepparent] is seeking to maintain a significant existing relationship with the child.”

Second, the petitioning stepparent must only show “the presence of a danger” of harm absent visitation. Per the new law, the stepparent need show only the mere possibility — “a danger” — of harm, not a likelihood of harm, to require the best-interest analysis.

Tennessee Rule of Civil Procedure 34. Rule 34.02 will require that objections to requests for production state “with specificity the grounds and reasons for” the objection and “whether any responsive materials are being withheld” based on the objection.

Unless noted otherwise above, these new laws and rule changes go into effect July 1, 2019.

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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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