Facts: Husband and Wife were divorced after 12 years of marriage.

knoxville divorceThe trial court divided 68 acres of marital property into three separate tracts. Wife was awarded the marital home with three acres. Because Wife’s mother occupied a mobile home located on the 68-acre tract, Wife was also awarded 10 acres where the mobile home is located. The court order specified that the 10 acres “shall be the 10 acres immediately surrounding [the] mobile home.” The trial court also granted Wife an easement for ingress and egress to the 10-acre tract of land immediately surrounding the mobile home.

Husband was awarded the remaining 55 acres.

The trial court ordered the parties to each pay one-half of the cost to survey and divide the property as directed.

Husband appealed, challenging the trial court’s evaluation of the marital assets and its distribution of the marital estate. The Court of Appeals affirmed the trial court.

Husband then attempted to collaborate with Wife to procure the ordered survey; however, Husband soon discovered that Wife had ordered a survey unbeknownst to Husband. Wife’s survey severed a single contiguous 13-acre tract of land, the majority of which surrounded the marital home and contained the entire road frontage.

Husband filed a motion for contempt and for a new survey.

The trial court found that Wife was not in contempt and denied Husband’s motion for new survey.

Husband filed a motion to alter or amend. At the hearing on that motion, Husband tendered two surveys: Wife’s original survey and a second survey procured by Husband.

The trial court denied Husband’s motion to alter or amend and held that Wife’s survey was consistent with the trial court’s ruling in the divorce.

Husband appealed.

On Appeal: The Court of Appeals reversed the trial court.

Husband argued that, by adopting Wife’s survey, the trial court failed to adhere to its original order regarding the division of the real property.

Because the trial court’s ruling was affirmed on appeal, the appellate court’s decision is binding in later trials and appeals of the same case if the facts in the second trial or appeal are substantially the same as the facts in the first trial or appeal. This is called the “law of the case” doctrine.

As a general rule, the trial court is in the best position to interpret its own orders. Orders, like other written instruments, should be enforced according to their plain meaning. Thus, courts called upon to interpret orders should construe the language in the order in light of its usual, natural, and ordinary meaning. If the language in an order is clear, then the literal meaning of the language in the order controls.

The Court concluded the trial court failed to follow its own order when it adopted Wife’s survey:

From the plain and ordinary language used in the order it is clear that the trial court awarded Wife two separate tracts of land, a 10-acre tract and a three-acre tract (containing the marital residence). Concerning the 10-acre tract, the final decree of divorce specifies that Wife shall receive “the 10 acres immediately surrounding [the] mobile home.” Despite these clear mandates, Wife’s survey apportions a single contiguous 13-acre tract of land, the majority of which surrounds the marital home and contains the entire road frontage. This division of the 68-acre tract is not consistent with the trial court’s order that was affirmed on appeal. Furthermore, the final decree of divorce grants Wife an easement for ingress and egress to the 10 acre tract of land immediately surrounding the mobile home. Had the trial court intended for Wife’s portion of the property to include all of the road frontage, there would have been no need for the easement for ingress and egress. In adopting Wife’s survey, the trial court fails to follow its own previous ruling. Not only does the trial court’s adoption of Wife’s survey negate its central ruling regarding the property division in the final decree of divorce, it also creates an illogical and unjust result, whereby Husband has no road frontage to his remaining 55-acre tract and he has no express easement for access to his acreage. . . . Conversely, Husband’s survey grants Wife two separate and distinct tracts of land, each with road frontage for ingress and egress. Other than providing for an easement, which is unnecessary since both of Wife’s parcels have road frontage, Husband’s survey comports with the final decree of divorce.

Thus, the case was remanded with instructions for the trial court to adopt the survey submitted by Husband.

Hudson v. Hudson (Tennessee Court of Appeals, Western Section, December 7, 2016).

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

Facts: In 2011, Child was born to Mother and Father. At birth, Child weighed 6 pounds, 14 ounces. Six months later, Child weighed a mere 7 pounds, 6 ounces, having gained only 8 ounces.

When Child saw a doctor, Child was immediately transported to the emergency room, where he remained for four days. Child was promptly removed from the parents’ custody.

tennessee divorce

When Mother and Father separated in July 2012, Mother began complying with the requirements of the permanency plan. Specifically, Mother had completed in-home education classes, which included instruction in domestic violence, proper nutrition, appropriate discipline, various parenting topics, the impact of alcohol and drugs on children, and the impact of domestic violence on children. She got sober and maintained her sobriety thereafter.

By June 2013, Mother had obtained appropriate housing.

In July 2013, Foster Parents petitioned to terminate Mother’s parental rights and to adopt Child.

The juvenile court placed Child on a trial home visit with Mother in October 2013. As of the date of trial two years later, Child remained on a trial home visit with Mother. The proof showed she provided an appropriate home, maintained employment, divorced her husband, and maintained her sobriety throughout those two years.

After finding that grounds for termination of Mother’s parental rights exists, namely severe abuse, the trial court found Mother had made such an adjustment of circumstance, conduct, and conditions as to make it in Child’s best interest to remain in her home. The trial court found that a change in caregivers would be detrimental to Child. The trial court specifically found the evidence relied upon by Foster Parents is historical and would require the court to speculate that Mother will relapse into her prior behaviors.

Foster Parents appealed.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court’s Finding that the termination of Mother’s parental rights was not in Child’s best interest.

When at least one ground for termination of parental rights has been established, the petitioner must then prove by clear and convincing evidence that termination of the parent’s rights is in the child’s best interest. When a parent has been found to be unfit by the establishment of a ground for termination, the interests of the parent and child diverge, and the focus shifts to what is in the child’s best interest. Further, the best interest of the child must be determined from the child’s perspective and not the parent’s.

Ascertaining a child’s best interests does not call for a rote examination of each of Tennessee Code Annotated § 36-1-113(i)’s nine factors in a determination of whether the sum of the factors tips in favor of or against the parent. The relevancy and weight to be given each factor depends on the unique facts of each case. Thus, depending on the circumstances of a particular child and a particular parent, the consideration of one factor may very well dictate the outcome of the analysis.

In a 2-1 decision, a majority of the Court concluded the evidence preponderates against the trial court’s determination regarding Child’s best interest:

We emphasize that in the instant case, Mother’s history is extremely troubling. In the past, Mother has repeatedly abused or neglected [Child] and his siblings. . . .

The evidence supports that Mother’s abuse and neglect of these Children has been extensive and damaging to the Children . . . . Mother has repeatedly demonstrated that she is not a fit parent.

Mother has a long history of complying with requirements of child welfare agencies in both Tennessee and Georgia when necessary in order to regain or retain custody of her children before returning to her abusive husband, her illicit drug use, and her patterns of abuse and neglect of her children when a child welfare agency is no longer involved.

*     *     *     *     *

We recognize that not every factor listed in Tennessee Code Annotated § 36-1-113(i) weighs in favor of termination in this case. However, we cannot overlook the severity and the extent of Mother’s abuse and neglect toward [Child and his] siblings throughout the years and, most significantly, her severe child abuse of [Child].

The case was remanded for the trial court to terminate Mother’s parental rights and rule on Foster Parents’ petition for adoption.

Dissent: Judge Stafford wrote a passionate and persuasive (to me) dissent:

I cannot agree that Foster Parents have shown clear and convincing evidence sufficient to forever sever the parent-child relationship at issue in this case . . . .

*     *     *     *     *

The abuse and neglect that Mother inflicted on the children, coupled with Mother’s refusal to admit her own culpability and her failure to inform physicians of her drug addiction, certainly weigh in favor of termination in this case.

Still, I believe that the majority Opinion too easily discounts the fact that the children had been living in Mother’s home, incident-free, for nearly two years at the time of trial. Instead, the majority Opinion chooses to focus on the past abuse and neglect inflicted on the children and its suggestion that Mother’s progress will reverse as soon as she is no longer under intense DCS supervision. . . . [T]he focus of the best interest analysis is not to punish a parent for his or her historically bad behavior; instead, the focus must center on what is best for the children at present and in the future.  Here, the trial court found, and the evidence supports, that the children had been living with Mother for the two years prior to trial without suffering any ill effects, that the children are bonded to Mother so that removal from her would cause the children “a loss,” and that at least one child has appeared to flourish under her care. Respectfully, after two-years of incident-free parenting in Mother’s home, I cannot fathom how much more incident-free parenting time would be required to persuade the majority that Mother’s improvements will be lasting. Moreover, it is not Mother’s burden to show that her changes will be lasting, but Foster Parent’s burden to show that they will not.

Furthermore, it is my opinion that where a case involves evidence so equally balanced both in favor of termination and against, the clear and convincing evidence standard demands that we find in favor of continuing the parental relationship.

*     *     *     *     *

Indeed, in this case, the children have been returned to Mother’s home and Foster Parents have put on no proof that the children have in anyway suffered as a result. From my review of the record, it appears that by the time of the trial on the termination petition, the children had been residing in Mother’s home for a longer period of time than they resided with Foster Parents. . . . Here, because the children have been residing in Mother’s home without incident for a number of years, it appears that both the interest in stability and the interest in maintaining the parent-child relationship are furthered by denying the termination petition in this case. Accordingly, I cannot agree that Foster Parents have established a clear picture in favor of a finding that termination is in the child’s best interest.

K.O.’s Comment: (1) As readers of these opinions, we lack access to the record from the trial court. The only way we can judge an opinion is based on the summaries of evidence contained in the opinion itself. For that reason, none of us readers are in as good a position as the members of the Court to decide or comment on these cases.

With that disclaimer out of the way, I find this outcome quite surprising and hope Mother seeks permission to appeal from the Tennessee Supreme Court. From both the trial court’s ruling, the majority Opinion, and the Dissent, it appears Foster Parents’ argument consists largely of speculation about what Mother may do in the future based on what she has done in the past, never mind her perfect record over the past two years. Granted, there is reason to speculate, but I don’t think speculation should ever form the basis for forever severing the parent-child relationship. To find that termination of the parent’s rights is in the child’s best interests, the proof must be clear and convincing, i.e., it must eliminate any serious or substantial doubt about the correctness of the conclusions drawn from the evidence. Can that be said here?

Four judges have reviewed this case: the trial court and three appellate judges. They have divided 2-2 on that question. I hope five Tennessee Supreme Court Justices weigh in.

(2) There are two companion cases for the two other children at issue in this home. Although the cases are separate, they were tried together, the proof is the same, the issues are the same, and the three appellate opinions and dissents are the same. The other two cases are In re Jude D. (and dissent) and In re Gabriella D. (and dissent).

In re Chance D. (Tennessee Court of Appeals, Eastern Section, November 30, 2016).

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

trail days

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

Facts: Mother and Father are the unmarried parents of Child. Once paternity was established, the court approved their agreed parenting plan that provided for equal parenting time and designated Mother as the primary residential parent.

Five years later, Father petitioned to change custody, alleging that Mother engaged in “erratic, irrational, and dangerous” behavior and had been “committed” to a hospital for “psychological and drug abuse reasons.”

The trial court modified the parenting plan by designating Father as the primary residential parent. Mother’s parenting time was limited to one overnight twice a month plus visitation on some holidays from 8 a.m. until 5 p.m.

Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Mother argued the trial court erred by “severely and inappropriately” limiting her parenting time without first making a finding under Tennessee Code Annotated § 36-6-406 that her conduct justified such a limitation.

Tennessee Code Annotated § 36-6-406 provides that parenting time “shall be limited” if the court finds that a parent engaged in certain conduct spelled out in the statute, including things like physical or sexual abuse, a pattern of emotional abuse, being convicted of certain sexual offenses, having unresolved substance abuse issues, engaging in “the abusive use of conflict”, and a host of other factors, including this catchall: anything the court “finds adverse to the best interests of the child.”

After reviewing the record, the Court concluded that the limitation of Mother’s parenting time was warranted under the circumstances:

In crafting the modification of the parenting plan, the court was particularly concerned with, and put much weight on, Mother’s lack of veracity to the court and to Father regarding the extent of her mental health issues in the possibility that she would not be forthcoming in the future if her ability to parent [Child] was impaired. The court’s concern was supported by the medical records and testimony in the record. . . . Considering the record as a whole, the trial court did not abuse its discretion in adopting a parenting schedule that permits Mother unsupervised overnight weekend visits with [Child] twice per month and on alternating holidays. It was not necessary for the court to make a finding with respect to section 36-6-406 because the modification to the parenting schedule does not severely and inappropriately limit Mother’s parenting time.

Thus, the trial court’s modification to the parenting schedule was affirmed.

K.O.’s Comment: (1) Counting a “day” the way we do for child support purposes, I count that Mother only receives 24 days of parenting time each year. Whether justified or not, how is that not a severe limitation on her parenting time? In Strickland v. Strickland, the Court says awarding only 120 days “greatly minimizes” the alternate residential parent’s time. In In re Grace N., the Court says 80 days is “standard parenting time” such that anything less than 80 days constitutes a “minimal amount” of parenting time. Awarding only 24 days of parenting time may be appropriate under the circumstances of this or any other case, but surely it constitutes a “severe” limitation on parenting time in any case.

(2) There are many ways parenting time can be limited or restricted; a court is not limited to the circumstances set out in Tennessee Code Annotated § 36-6-406. I covered this topic in some detail in my recent Tennessee Family Law Update 2016 seminar. Here is the slide from the seminar that summarizes the ways parenting time can be restricted or limited:

restrict parenting in tennessee

In re Emily M. (Tennessee Court of Appeals, Middle Section, November 30, 2016).

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

2016 ABA Blawg 100The American Bar Association has named this as one of the 100 best blogs for a legal audience for the second year in a row.

Seriously.

The ABA considers this little blog about Tennessee family law one of the best legal blogs.

In.

The.

World.

Click here to see the list — known as the “Blawg 100” — for yourself.

The Blawg 100 and some related articles appear in this month’s issue of the ABA Journal, which is the flagship magazine for the American Bar Association read by over 500,000 lawyers.

I want to thank all of you who read this blog, who share the posts with others through social media, who comment on the posts, and who recommend it to your friends and colleagues.

And I want to especially thank those of you who took the time to share your thoughts about this blog with the ABA.

Blawg 100 Herston

Being selected for the Blawg 100 is the biggest award a legal blogger can receive. I am honored by your support. Thank you, thank you, thank you!

celebrate-gif

Source: American Bar Association’s Blawg 100 (ABA Journal, December 1, 2016).

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

Posted by: koherston | December 2, 2016

Photo of the Week: Home on the Tennessee River

house on tennessee river

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

Facts: Mother and Father, the parents of two children, married and lived in Colorado for many years until moving to Tennessee. About six months after moving to Tennessee, Mother and Father separated. Over a year later, Mother filed for divorce.

moving-to-coloradoEach parent was designated the primary residential parent for one child, with the other parent receiving 85 days of parenting time per year.

In June 2015, Mother lost her job in Tennessee. Two months later, she notified Father of her intention to relocate to Colorado with the child for whom she was the primary residential parent. Mother stated she had been offered a job at a startup in Colorado. She also said the move would allow her to be close to her family.

Father filed a petition in opposition to Mother’s removal of the child.

The trial court found Mother did not have a reasonable purpose for her relocation, citing the “lack of experience” of her prospective employer in Colorado. The trial court also found the proposed relocation was not in the child’s best interest.

Father’s petition opposing Mother’s request to relocate with the child was granted.

Mother appealed.

On Appeal: The Court of Appeals reversed the trial court.

One of the most common postdivorce flashpoints occurs when the primary residential parent decides to move with his or her child or children to another city or state. One parent loses regular parenting time with the child as a result of the other parent’s move. The farther the move, the more intense the opposition because of the move’s effect on visitation and the ability of the other parent to foster and maintain an appropriate relationship with his or her child or children.

Under the parental relocation statute found at Tennessee Code Annotated § 36-6-108, the appropriate analysis depends upon the relative amount of time the parents spend with the child. In this case, Mother spends substantially more time with the child than does Father; therefore, the applicable statutory provision is Tennessee Code Annotated § 36-6-108(d)(1):

If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(A) The relocation does not have a reasonable purpose;
(B) The relocation would pose a threat of specific and serious harm to the child that outweighs the threat of harm to the child of a change of custody; or
(C) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.

Thus, if the parents do not spend substantially equal intervals of time with the child, there is a legislatively-mandated presumption in favor of the relocating custodial parent. The burden is on the parent opposing the relocation to prove one of the three statutory grounds. If the opposing parent fails to do so, the court must allow the relocation.

Determinations of whether a proposed move has a reasonable purpose are fact-intensive and require a thorough examination of the unique circumstances of each case. Tennessee courts have consistently held that a salary increase and career advancement opportunities can be a factual predicate to constitute a reasonable purpose for relocation. They have also stated, however, that there must be more than a mere hope or belief of a better opportunity or a salary increase. Other pertinent economic factors include the relative significance of the salary increase, the cost of living in the proposed location compared to the present location, the firmness of the job offer, opportunity for career advancement, and economic betterment of the family unit.

After reviewing the record, the Court found Mother had a reasonable purpose for relocating:

In finding no reasonable purpose, the trial court focused almost exclusively upon Mother’s prospective employer, reasoning that the courts impose an implicit “requirement that there be some certainty with respect to the entity making the offer of employment.” The trial court found that [Mother’s prospective employer] had no experience in the particular type of business being developed . . . . While commending the objective of the company as “promising,” the trial court expressed concern that “there are as yet no results with which to gauge its prospects.” Similarly, although the salary projections for Mother of $60,000 to $150,000 (with bonuses) were “potentially lucrative; there was no certainty with respect to the ability of the entity to eventually make that payment.”

As stated above, Mother’s job prospects must be more than “a mere hope or belief.” They need not, however, be an absolute certainty. Contrary to the reasoning of the trial court, we find that Mother’s opportunity with [her prospective employer] was not speculative or uncertain enough to justify the trial court’s decision. [Mother’s prospective employer] had experience with startup companies and had already contributed substantial capital and raised additional capital for the venture at issue. Moreover, Mother had developed other job opportunities in Colorado. . . . There is no evidence to suggest Mother could not find other such opportunities in Colorado, if necessary.

*     *     *     *     *     *

In this case, Father did not produce any evidence of jobs available for Mother in the Chattanooga area. Father failed to prove that Mother’s proposed relocation to Colorado for job opportunities was not for a reasonable purpose. We conclude that the trial court erred in finding that Mother’s relocation was not for a reasonable purpose.

Thus, the trial court’s judgment was reversed and the case remanded for a new parenting schedule in light of Mother’s relocation.

Mouton v. Mouton (Tennessee Court of Appeals, Eastern Section, November 16, 2016).

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

Posted by: koherston | November 28, 2016

The Secret Superpower of a Shared-Custody Kid

This article by Rachelle Bergstein in The New York Times may be of interest.

The Secret Superpower of a Shared-Custody Kid

At 5:25 p.m., my mother pulled into our driveway. I saw my dad’s Cadillac waiting for us and glanced at Mom, whose broad smile instantly flattened. At 10 years old, I could already read her thoughts: Pickup time was 5:30, and she wasn’t willing to suffer accusations of tardiness, just because he was Mr. Punctuality.

Six-foot-five with jet-black hair, my father cut an intimidating figure, even if I knew that he liked nothing more than to turn his long arms and legs into props as he made up the words to songs and did goofy dances. Now, he was all business, and gestured at his watch angrily.

“I still have five minutes,” my mother said. She was generally vivacious, but when feeling threatened, she could transform herself into an ice queen.

“What’s the matter with you? Daylight saving time,” my father said. He’d been waiting an hour. She had made this mistake at least once before.

super kidThe color drained from my mother’s face as indignation gave way to embarrassment. Now, in the era of digital clocks that spring forward and fall back automatically, and cellphones that make it simple to communicate, it’s easy to forget that something as ordinary as daylight saving time could once have been so disruptive. But it was 1991, and ever since my parents got divorced, the day after we changed the clocks always felt slippery. My dad prided himself on his superior organizational skills while my mother lived in a house littered with scribbled notes-to-self to compensate for her bad memory.

That evening, I rushed out of one car and into the other. I didn’t need an overnight bag; my parents had done what they could to avoid a situation where I’d be packing and unpacking twice a week, and I had two rooms outfitted with essentials and beyond — two pairs of pink-framed glasses, two closets full of clothing, two favorite stuffed animals. Dad backed out of the driveway quickly, and said very little until we made it past the traffic light at the end of the block.

“Your mother,” he started, his lip twitching. I waited while he paused.

He opened his mouth to speak and then closed it again. Then, his jaw softened. “How long do you think she would have gone until she figured it out?”

I laughed, utterly relieved. “At least another day.”

I would learn, eventually, that all families have rules that – when violated – threaten to dismantle the whole arrangement. At the time, however, I thought I was the only kid in the world with two houses and a handwritten schedule in either kitchen; at the start of every month, my father listed the nights I would spend with him and then presented my mother with a copy. His diligence was a safeguard against situations just like this one, when he rang the doorbell to an empty house and then let the frustration and resentment wash over him.

My mom never made that mistake again. Daylight saving became another scribble on a Post-it note, another thing she was careful not to let her busy mind forget. And my dad let it go, for the most part – her blunder became a private joke for us, shorthand for the way such a smart, put-together woman could also be so ditzy.

My parents broke up when I was 5 years old, which means memories of life before shared custody are available to me, but limited. They set the terms of their divorce under the guidance of their lawyers, and I – as many young kids do — adapted and accepted the new parameters of my childhood.

But as I tipped into my teenage years, switching back and forth became more difficult. There were, of course, small aggravations, like when I accidentally left something I wanted at the other house. Yet that didn’t account for the new anxiety I felt at those twice-weekly hand-offs.

My two homes could not have been more different. By that time my parents had both happily remarried and they’d created new lives: my mom went back to school and our house was quiet, our conversations intellectual. My dad had two more little girls, and every time I stepped through the front door, it felt like I’d joined the circus. Mom stressed the importance of academic achievement; Dad pouted when, in our limited time together, I shut my door to do my homework. My mother thought manners were a sign of good breeding, and she frequently appended a “please” to the end of my requests. When I asked my father for “a glass of orange juice, please,” he ribbed me for behaving like a guest in my own kitchen.

My father’s car had become a portal between two parallel worlds. Somewhere along the way, every day had started feeling like the Sunday after daylight saving time. I straddled two time zones, both familiar, but conspicuous.

Now that I am an adult, with a husband and young son, I sometimes let myself feel sorry for the girl who frequently woke up in the morning not knowing where she was. And the Sunday morning after the clocks change still makes me uncomfortable.

But I know that not all children of divorce are lucky enough to have two parents who work so hard to stay connected. I’ve also come to appreciate the ways my childhood shaped me. Growing up across two households with two distinct sets of customs has made me observant and adaptive: I’m bilingual, in a sense.

That anxiety that plagued me as a teenager is gone, replaced with confidence in my fluency in both families. And like children who actually learn two languages from birth, that innate ability to switch back and forth serves me well, especially when I find myself in unfamiliar settings. It’s not just me: I often admire the way my husband, another shared-custody kid, moves so easily through new environments. He’s good at parties, but he’s also the kind of person who lands in a city for the first time and, within 24 hours, gets asked for directions.

The expected legacy of a joint custody childhood is a craving for stability, which my husband and I share. The unexpected one is real agility: a knack for adapting, switching gears, understanding the language of families, blending in.

We’ve learned that a family needs to be strong, yet flexible. Just as we can’t control the changing of the season or the clocks, we have to accommodate hiccups in the rhythms of our lives.

Source: The Secret Superpower of a Shared-Custody Kid (The New York Times, July 8, 2016).

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

turkey half marathon

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

Posted by: koherston | November 23, 2016

Happy Thanksgiving!

K.O. Herston

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

Facts: Mother and Father are the unmarried parents of two children.

The parents eventually separated, and Father returned to his family home in Louisiana. An agreed order was entered naming Mother the primary residential parent. Father was granted visitation with the children for the entire month of June, one weekend per month, and alternating holidays.

For the next three years, the children moved back and forth between Mother’s home in Tennessee and the home of her father, i.e., the children’s maternal grandfather, in North Carolina. Father paid no support to Mother or Grandfather, although he did provide for the children’s needs when they were visiting with him.

At some point Grandfather began denying Father’s request for visitation.

Father filed a petition to change custody from Mother to Father.

Grandfather was allowed to intervene in the custody dispute because Grandfather alleged both parents failed to support and care for the children. Grandfather asked that custody be awarded to him.

The proof showed Father worked on an oil rig such that he worked for two weeks straight and then was off for two weeks. When he wasn’t working on the oil rig, Father lived with his grandmother.

The trial court awarded custody to Grandfather, finding that substantial harm to the children would result if custody were granted to Father. The trial court said that if the children moved to Louisiana with Father there would be “too many unknowns” because the court did not know who would care for the children or where they would go to school. The court also observed that a grant of custody to Father would basically be trading one grandparent for another considering his current work schedule and living situation.

Father appealed.

On Appeal: The Court of Appeals reversed the trial court.

In a contest between a parent and a nonparent, a parent cannot be deprived of the custody of the child unless there has been a finding of substantial harm to the child. Only then may a court engage in a general “best interest of the child” evaluation in making a determination of custody.

Tennessee courts have not undertaken to define the circumstances that pose a risk of substantial harm to a child. Such circumstances are not amenable to precise definition because of the variability of human conduct. However, the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or insignificant. Second, it indicates that the harm it must be more than a theoretical possibility. While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not.

The Court noted the trial court focused its analysis on Father’s past nonpayment of support and his employment schedule:

Father admitted that part of his reluctance to pay child support to Grandfather was because Grandfather thwarted his attempts to visit the Children and referred to Father as a “sperm donor.” During his testimony, Grandfather acknowledged that there had been times when Father had asked to see the Children but Grandfather refused his requests. Although Grandfather’s behavior does not justify Father’s non-payment of child support, it does negate Grandfather’s and Mother’s assertions that Father “abandoned” the Children or would fail to support the Children if they were in his custody. Father has demonstrated through the years that he is competent to provide for the Children while they are in his care. Father has also demonstrated a consistent desire to spend time with the Children when allowed to do so. Thus, Father’s past failure to pay child support, standing alone, is insufficient to establish substantial harm.

With regard to Father’s work schedule, the trial court stated that Father’s two-week-on, two-week-off schedule “essentially requires the Court to choose between the maternal grandfather and the paternal great-grandmother whom the Father has indicated would care for the children while he was working on the oil rig.” The court made this finding despite Father’s testimony that he was willing to seek full-time employment in Louisiana if the Children were placed in his care and despite the substantial support system that Father and the Children would enjoy due to the presence of the paternal grandmother and great-grandmother. Grandfather acknowledged that he related well to Father’s family and offered no concerns about their influence on the Children. Grandfather also admitted that the Children always enjoyed their co-parenting time with Father and his family. We therefore determine that a finding of substantial harm is not supported by clear and convincing evidence.

*     *     *     *     *     *

Based on the totality of the evidence, we determine that Mother and Grandfather did not clearly and convincingly establish that the Children would be exposed to a risk of substantial harm if they were placed in Father’s care. We conclude that the trial court erred by granting primary custody of the Children to Grandfather, who is a non-parent.

Thus, the award of custody to Grandfather was reversed and the case remanded to determine whether a material change in circumstance had occurred since the initial custody award to Mother and whether modifying the primary residential parent from Mother to Father is in the children’s best interest.

Vinson v. Ball (Tennessee Court of Appeals, Eastern Section, November 9, 2016).

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

Posted by: koherston | November 18, 2016

Photo of the Week: Goldfinch with Dandelion Florets

goldfinch dandelion

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

Posted by: koherston | November 17, 2016

Tennessee Family Law Update 2016: Johnson City

This morning we departed Knoxville before 6:00 a.m. en route to Johnson City and our final presentation of this year’s annual update seminar. We have a loyal following in the Tri-Cities, and it’s nice to see the same faces from year-to-year.

Here are some of the comments from today:

  • The gold standard of domestic relations seminars! —Bill Hampton, Esq.
  • A very effective presentation that helps me stay on top of the issues in family law. —Shelburne Ferguson Jr., Esq.
  • I always learn important information immediately applicable to my cases. This CLE helps keep me on top of my game and help my clients. —McKenna Cox., Esq.
  • All was superb. —Sarah Shults, Esq.
John teaching in Johnson City

John teaching in Johnson City

After enjoying lunch at Tupelo Honey, we made our way home to Knoxville, where life will now return to normal (or for what passes for normal in a family law practice).

home sweet home

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

Posted by: koherston | November 16, 2016

Tennessee Family Law Update 2016: Knoxville

After traveling to Memphis and Nashville, this morning we presented the seminar on our “home turf” in Knoxville.

Herston seminar

K.O. teaching in Knoxville

While the other cities are interesting in their own ways,  it’s always more fun to present this information to our colleagues with whom we handle our cases.

Some of today’s comments include:

  • This is always the most worthwhile CLE I attend each year. —Diane Messer, Esq.
  • Time flew by during the presentations. K.O. and John are well prepared. Excellent insights offered! —Heather Anderson, Esq.
  • Concise information and practical tips that will actually be useful. —Maria Danker, Esq.
  • Excellent as always! —Rebecca Bell Jenkins, Esq.
  • A great supplement to K.O.’s blog, which is a must read. —Jacqueline Kittrell, Esq.

Tomorrow morning we wrap things up in Johnson City. If you want to attend, it isn’t too late to sign up.

Tennessee family law update 2016

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

Posted by: koherston | November 15, 2016

Tennessee Family Law Update 2016: Nashville

This morning John and I returned to my hometown of Nashville to present this year’s annual update seminar.

Our hosts at the Nashville School of Law were gracious, as always. They provide an excellent venue for continuing legal education seminars.

nashville-school-of-law

Nashville School of Law

My mother lives in Nashville so she decided to “pop in” to today’s seminar. Even though I’m 44 years old, she had to stop by to see her “baby.”

Here are some of the comments from today:

  • Excellent update! Enjoyed the CLE. —Robert Curtis III, Esq.
  • Worth the drive from Chattanooga. —Leslie McWilliams, Esq.
  • Very thorough, helpful, and useful. —Byron Davis Jr., Esq.
  • Good pace of presentation. Well done! —Daryl South, Esq.

We’ll be in Knoxville tomorrow before finishing in Johnson City on Thursday. If you want to catch this year’s update, you can find the details here.

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

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