Longtime readers know the drill. To the young lawyers and other new readers, go no further until you’ve lowered the blinds, turned down the lights, put on some gentle jazz in the background, lit scented candles, and poured an ample serving of bourbon before reading any further.

Next, ponder what led the innocent, optimistic child you once were to become a family-law attorney. How did you get here? Was this your fate all along? Who’s to blame?

Whatever the answers to those questions are, accept this is where you find yourself. At least you’re in good company.

I’ve been writing these annual legislative update posts for 14 years now. I’ve seen a lot of nonsense, but each year before this one, my exposure was limited to the handful of bills signed by the Governor. As it turns out, those were the good ol’ days.

I joined the Executive Council of the Tennessee Bar Association’s Family Law Section this year. When the Legislature is in session, we meet weekly to review all proposed legislation affecting family law. We then work with the TBA to support, oppose, or change these proposals. So, my exposure to legislation this year expanded to include some truly mystifying ideas. If you’ve seen me looking shell-shocked in the courthouse, now you know why.

After solving all other problems in Tennessee, the people we “elected” through radically gerrymandered districts that reward extremism and insulate them from losing to improve our lives found time to solve problems you didn’t even know we had. Here are some examples:

• Tennessee students must watch an anti-abortion video that doctors say is false and misleading.
• We are finally safe from the dangers of a bill that would protect our access to birth control and in vitro fertilization.
• Parents can be punished if their children commit crimes.
• Teachers can carry concealed handguns in schools.
• No one will roofie your salad with vaccines you don’t want if that technology is developed. Our legislators took care of that.
• The absence of an official holiday song has been rectified by “Rockin’ Around the Christmas Tree.”
• “Hot slaw” is now our official state food, and Cleveland is the “hot slaw capital” of Tennessee. The New York Times even did an extensive write-up on this. Click here for the official recipe so you can make it at home (Tip: add more jalapenos than the recipe calls for.)

Unless otherwise noted below, these changes go into effect on July 1, 2024.

Remote testimony in court. Rule 43.01 of the Tennessee Rules of Civil Procedure will be amended to create a new subsection (b) that allows trial courts to let witnesses testify by video from a remote location. This requires the parties’ agreement or a motion from the requesting party filed at least 60 days before the hearing. In determining whether to allow remote testimony, the new subsection (b) lists 22 considerations (!!!) trial courts are to consider, which is literally everything anyone could possibly think of. The main factors will probably be the cost and time savings, the witness’s (in)ability to appear in person, and the convenience of the parties. It also requires the remote witness to sign a notarized statement that must be filed with the court before they testify.

Amicus briefs. Rule 31 of the Tennessee Rules of Appellate Procedure will be amended to require the conditional filing of an amicus brief with the filing of the motion for leave to file an amicus brief.

Marriage. Public Chapter 511 adds a new subsection to the statute determining who “may” officiate weddings to clarify that “a person shall not be required to solemnize a marriage.” So, people who oppose one’s constitutional right to marry whoever they love are now safe from being “forced” to officiate the marriage of gay couples because, you know, that was a real thing actually happening in the real world. This went into effect on February 21, 2024. Also, Public Chapter 806 prohibits marriage between first cousins as of April 29, 2024.

Videoconferencing with child. Public Chapter 711 changes the first of the “Parents Bill of Rights” in every parenting plan—the one requiring telephone conversations with the child at reasonable times—to now include “video conference conversations.” This went into effect on April 11, 2024.

Best-interest factors. Public Chapter 799 makes a few unimportant changes, including changing child-custody best-interest factor 11 to specify that “any other person” includes the child’s siblings. Then it adds a new § 36-6-702 that prohibits courts from ordering “reunification treatment” to help establish the parent-child relationship if the trial court if the court found the parent physically or sexually abused the child or substantially refused to perform parenting responsibilities unless the court finds that reunification efforts are in the child’s best interests. Specific factual findings are required. It also requires the court to find the child “will not be subject to further abuse or harm” before it restores parenting time to the parent previously found to have abused the child. These standards also apply in juvenile court. This became effective on April 23, 2024.

Child support. Public Chapter 878 allows a child-support obligor with their commercial driver’s license suspended or revoked for not paying child support to have their license reinstated if they show (1) their job requires them to drive a commercial vehicle, (2) their employment will help them get caught up on their child support, and (3) a wage assignment requires the employer to withhold the obligor’s child support from their income.

Social media. Public Chapter 899 requires social media companies to verify the age of their account holders and, if that person is a minor, obtain “the express consent of the minor’s parent to allow the minor to become an account holder.” It also requires the social media company to give parents means for supervising their child’s account, including options for the parent to view privacy settings, set daily time restrictions, and implement breaks during which the child cannot access the account. This new law goes into effect on January 1, 2025.

Grandparent visitation. Public Chapter 715 changes the grandparent visitation statute to add that reasonable visitation must, at a minimum, provide “sufficient contact to reasonably permit a strong and meaningful relationship to be established with the child.” This went into effect on April 11, 2024.

K.O.’s Comment: Did the drafters intend to allow “a strong and meaningful relationship to be maintained with the child” instead of “established”? To order grandparent visitation in the first place, the court must find a danger of substantial harm to the child absent visitation. This necessarily presupposes the existence of a “strong and meaningful” relationship.

Orders of protection. Public Chapter 632 expands the availability of lifetime orders of protection to victims whose offenders have been convicted of harassment, aggravated stalking, or especially aggravated stalking. This went into effect on April 2, 2024.

Domestic violence. Public Chapter 1033 allows courts to order those who violate an order of protection to wear a GPS monitoring device and to give the victim a device that tells them if the violator is within their vicinity, all at the expense of the violator. Technology is a wonderful tool.

Parentage fraud. Public Chapter 896 creates a new law allowing the victim of parentage fraud, i.e., a man falsely led to believe he was a father, to recover “restitution” for child support paid and any “other financial support made in reliance upon the parentage fraud.”

Dependency and neglect. Public Chapter 862 changes the definition of “dependent and neglected child” to specify it is referring to “a child at the time of the filing of the petition.” This law was drafted by the Department of Children’s Services (“DCS”).

K.O.’s Comment: Before this amendment, a child had to be found dependent and neglected on the date of the adjudicatory hearing. This incentivized parents to remedy whatever conditions led to the petition by the time of the adjudicatory hearing. I have had several clients for whom this provided substantial motivation to comply with treatment, maintain their sobriety, etc. It also meant DCS lost cases when the parents cleaned up their act before the adjudicatory hearing, which you’d think DCS would consider a victory. By removing the powerful incentive for a parent to carry out the challenging tasks needed to get their child back, DCS will “win” more cases, and fewer children will be at risk of not being returned to their families.

Token child support. In parental termination and adoption cases, Public Chapter 613 amends the definition of “token support” to create a presumption that support is “token” if it is less than the minimum amount the parent would owe under the Child Support Guidelines. It shifts the burden of proof to the parent to prove by a preponderance of the evidence that the support given was more than token support.

K.O.’s Comment: What was wrong with the previous method of determining token support? Experienced family-law attorneys often disagree about what a parent owes under the Child Support Guidelines even when we have extensive documentation. How should a layperson know what they “would” owe under the Guidelines? Whatever the alleged problem was, shifting the burden of proof to the parent is not the solution. Are termination cases now going to include a mini-trial over what Guidelines support should have been?

Severe child abuse. Public Chapter 613 changes the definition of “severe child abuse” to delete the requirement that the exposure to abuse or failing to protect the child from abuse be “knowing.” It also requires the trial court to determine whether the child’s parents or caregivers “knowingly or with gross negligence” committed abuse or did not protect from abuse and to determine whether the parent or caregiver “cannot be excluded as a perpetrator of severe child abuse.” To return the child to their home, the trial court must find clear and convincing evidence that the victim of severe abuse will not be returned to their home until no one in the home can be excluded as a perpetrator of severe child abuse.

K.O.’s Comment: This legislation was proposed by DCS after the Tennessee Supreme Court’s decision in In re Markus E., where the Court unanimously held that the now-omitted “knowing” requirement required proof that the parent actually knew the relevant facts and circumstances or was in deliberate ignorance of or in reckless disregard of the information presented to them. What is wrong with the outcome in In re Markus E.? Why shouldn’t a parent’s conduct be “knowing,” i.e., that the parent knew or should have known, before the State can remove their child and terminate their parental rights? And why should the parent have to prove by clear and convincing evidence that they are not the perpetrator before their child can be returned to them? Who should have the burden of proof regarding fundamental parental rights? Look, DCS, I’m sorry you lost a case. It happens to the best of us. However, rewriting the law for every case because of the outcome in one case is a terrible way to make policy.

Placement of LGBTQ children in foster homes. Public Chapter 677 prohibits DCS from considering a prospective adoptive or foster parent’s “sincerely held religious or moral beliefs,” including their beliefs “regarding sexual orientation or gender identity,” before placing a child in their home. The new law specifically says such beliefs “do not create a presumption that any particular placement is contrary to” the child’s best interest. Similarly, Public Chapter 699 prohibits DCS from requiring a foster parent or adoptive parent to undergo “any immunization as a condition of” receiving the child.

K.O.’s Comment: According to The Hill, this bill conflicts with federal rules that protect LGTBQ children. According to the U.S. Department of Health and Human Services, up to a third of all foster youth nationwide identify as LBGTQ—often kicked out of homes or winding up in state custody because of mistreatment or rejection based on their gender identity. Tennessee currently has 8,854 kids in state custody—6,686 of them living in foster homes.

Adoption. Public Chapter 996 is the annual adoption “cleanup” bill. Among other things, it changes the definition of “putative father” and lets an interested person pay for hospital and medical care, counseling fees, legal services, and actual expenses for housing, food, utilities, transportation, etc., for up to 90 days after the birth, surrender, or consent to the child’s adoption. It tweaks the process for a valid surrender and provides a new ground for terminating the parental rights of a father to a child conceived through sexual assault. It also creates for all adults the “affirmative obligation to inquire whether their sexual activity has resulted in a pregnancy” and clarifies that failing to make this inquiry is not a defense to a ground for termination. It clarifies who is a “necessary party” to an adoption or termination proceeding and makes other technical changes. Adoption attorneys must read it.

Court-appointed attorneys. Public Chapter 966 increased the hourly rate for court-appointed attorneys representing indigent parents by $10 an hour to $60 an hour, the first increase since 1997.

K.O.’s Comment: Nearly half the cases in juvenile court require court-appointed attorneys. The failure to raise rates for 26 years has sharply limited the number of lawyers who can afford to take appointed cases, leading to a crisis as juvenile court judges struggle to find lawyers to handle these cases. Even with this increase, Tennessee’s court-appointed attorneys remain the lowest paid in the country. It’s financially impossible to maintain a law practice at these rates. Beyond that, it is robbing young lawyers of the invaluable courtroom experience many of us older lawyers gained by trying court-appointed cases in juvenile court with minimal or no discovery. This chronic refusal to fund this necessary government function will have downstream effects for decades.

Parental rights. Public Chapter 1061 declares that certain broadly defined parental rights are “fundamental rights of a parent” that shall not be “substantially burdened” by a government entity unless it is “required by a compelling governmental interest of the highest order” and is the least restrictive means of furthering that governmental interest, including the right to:

• direct the child’s education, including “the right to make reasonable decisions with the public schools” for the child’s education;
• consent before the child’s DNA or “biometric data” is collected; and
• see the child’s educational or medical records as already guaranteed in the Parent’s Bill of Rights found at TCA § 36-6-101(a)(3)(B) and elsewhere in the Tennessee Code.

It also prohibits healthcare providers from treating a child without first obtaining the parent’s consent. Much of it duplicates existing law.

K.O.’s Comment: Several similar “parental bill of rights” bills were introduced this session in Tennessee and other states. This is the one that made it to the Governor’s desk. The main substantive effect is creating confusion that will cause people to bend over backward to accommodate a vocal Karen parent. For example, what is a “reasonable decision with the public school” regarding a child’s education? One can easily see how that ambiguity could be a nightmare for teachers and school administrators.

If you find this helpful, please share it using the buttons below.