Tennessee Injury Lawyer Blog

Child support is often a contentious issue between divorced parents. Often the person who is owed support will feel like the parent who fails to pays child support is purposefully withholding the funds to punish the other parent or “get even” with them in some manner. Likewise, the parent who pays support might feel like the recipient is spending the money on something or someone else rather than using it to support the child. What parents sometimes fail to take into account is that the support is ordered because it is in the best interest of the child or children, and that once the order to pay child support is handed down by the court it must be obeyed like any other court order. Those who fail to obey a child-support order risk being found in contempt of court.

For a person to be held in contempt of court for failing to obey a child-support order, the prosecution must prove that the person had the ability to pay the child support in East Tennessee at the time it was due and that his or her failure to pay the child support was willful. While it may seem sensible to put the burden of proof on the party who is claiming inability to pay, Tennessee courts have held that a criminal contempt proceeding should be conducted like any other criminal trial and thus the burden is on the prosecution to prove beyond a reasonable doubt that the accused had the ability to pay and willfully failed to do so.

Continue reading "Failure to Pay Child Support: Criminal Contempt" »

When seeking to determine who should have custody of a child, Tennessee Courts will use what is known as a “best interest” analysis to decide who should serve as the child’s guardian. Under the best interest analysis, the court will look at a number of factors including love and affection for the child, ability to meet the child’s needs, stability of the family unit, and the prospective guardian’s parenting ability or potential. Tennessee child custody law also contains a statute mandating that certain persons be given greater consideration by the court in making the guardianship determination because of their relationship to the child. T.C.A. section 34-2-103 lists these parties in the following priority, from greatest priority to least: the parent(s) of the minor; the person(s) designated by the parent(s) in a will or other document; adult siblings of the minor; closest relative(s) of the minor; and everyone else. This is a sensible ordering emphasizing what is more than likely what is in the best interest of the child. However, this ordering is not determinative as to the issue of custody. In fact, this ordering will only be referred to in the event that the court’s own best interest determination results in a tie.

A recent case before the Tennessee Court of Appeals involved a custody dispute between a child’s maternal grandmother and paternal aunt. After the child’s father and legal custodian died, the mother was granted temporary custody. The paternal aunt then filed for custody based on the mother’s having mental health issues and the paternal aunt was awarded temporary custody. The aunt’s custody was then challenged by the maternal grandmother who alleged that the aunt had been traveling on business and left the child in the care of other people, and a custody hearing ensued. At trial, the Court found that the although both parties had performed well when caring for the child, the aunt was a person of great achievement and character who had been successful at raising her own children and could provide many opportunities for the child in this case. The Court also looked favorably upon the aunt’s willingness to transport the child to Florida to visit its biological mother and encouragement of the child in maintaining constant contact with its biological mother. The Court ruled that the aunt was clearly favored in the best interest analysis, and thus there was no need to resort to the “tiebreaker” statute of T.C.A. section 34-2-103.

Continue reading "Child Custody and the Tie-Breaker Statute" »

Severely belated paternity determinations aren’t just for the Maury Povich Show anymore. The Tennessee Court of Appeals recently heard a case where the mother of a five year-old child filed a petition for paternity against the man who had been her paramour during her recently failed marriage. The child was born to the mother in November of 2000 and she held out to her husband that he was the father of the child until DNA testing conducted during the divorce in March of 2005 excluded the husband as a possible father. The mother filed the petition for paternity against the paramour in September of 2005, alleging that the two had engaged in an affair for approximately ten years. DNA testing revealed that the paramour was indeed the father of the five year-old. In July of 2007, the trial court entered an order naming him the father. The ensuing award of child support was a point of contention.

In a situation like the one in the instant case, where the paternity of a child is established long after the child’s birth, the Tennessee child support guidelines create a presumption that child support and medical support for the benefit of the child will be awarded retroactively to the child’s birth. The mother thought this would be appropriate in this case, but the trial court disagreed. T.C.A. section 36-2-311(a)(11)(A) lists three bases for possible deviation from the presumption that support should be awarded retroactively to the child’s birth:

1. "The extent to which the father did not know, and could not have known, of the existence of the child, the birth of the child, his possible parentage of the child or the location of the child;


2. The extent to which the mother intentionally, and without good cause, failed or refused to notify the father of the existence of the child, the birth of the child, the father's possible parentage of the child or the location of the child; and


3. The attempts, if any, by the child's mother or caretaker to notify the father of the mother's pregnancy, or the existence of the child, the father's possible parentage or the location of the child.”

Continue reading "Child Support: Paternity Issues - Retroactivity" »

For a lot of parents, there is nothing more important in life than their children. Thus, there is also nothing more painful for these parents than a custody order being handed down by a Tennessee court that does not allow them to spend as much time with their children as they feel is appropriate. These parents may want to try to modify the custody orders but have no idea how to do so. This begs the question: “When will a Tennessee court modify a child custody order?”

The short answer is that the court will modify a child custody order when there has been a “material change in circumstances” affecting the child that necessitates modification of the order after the initial order has been handed down. The burden to prove that there has been such a material change is placed on the party challenging the initial custody determination. The challenging party will have to prove both that a material change of circumstances has occurred and that a change to the current custody order is in the child’s best interest. “Material change” does not necessarily mean that the child has to be at a substantial risk of harm under the new circumstances; rather, it simply means that some facts or circumstances relating to custody of the child have changed so that it becomes necessary to change the initial custody determination.

Such developments could include changes in living arrangements, inability of one party to follow an agreed parenting plan, new indicia of abuse by a custodial party, etc. A skilled East Tennessee child custody attorney who has years of experience handling modification of orders is usually sought in such situations.

Anything that would tend to prove that the best interest of the child would be better served by modifying the custody determination can be used to challenge the current custody order, but it must be substantial as Tennessee courts favor stability and will not upset the current custody arrangement without sufficiently good cause (see Taylor v. Taylor).

Continue reading "Child Custody: Modification" »

For many children, grandparents occupy a special place in life, providing a level of love and support that is maybe matched only by the child’s parents. Tennessee recognizes this and has taken steps to ensure that changing circumstances in a child’s life won’t prevent that child and the grandparent from being able to spend quality time together. Tennessee’s Grandparent Visitation Act, T.C.A. section 36-6-306, guarantees grandparents the right to a hearing granting them visitation rights in situations where visitation is opposed by the custodial parent(s), and:

1. “The father or mother of an unmarried minor child is deceased;


2. The child's father or mother are divorced, legally separated, or were never married to
   each other;


3. The child's father or mother has been missing for not less than six (6) months;


4. The court of another state has ordered grandparent visitation;


5. The child resided in the home of the grandparent for a period of twelve (12) months or more and was subsequently removed from the home by the parent or parents (this grandparent-grandchild relationship establishes a rebuttable presumption that denial of visitation may result in irreparable harm to the child); or


6. The child and the grandparent maintained a significant existing relationship for a period of twelve (12) months or more immediately preceding severance of the relationship, this relationship was severed by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and severance of this relationship is likely to occasion substantial emotional harm to the child.”

The Tennessee Court of Appeals recently decided that opposition of grandparent visitation by a custodial parent does not have to be a formal and total opposition to fall within the language of the statute. The Court found that after a child’s father had died, the mother had effectively opposed visitation by the paternal grandparents by refusing to answer the telephone when they called and substantially reducing visitation time.

Continue reading "Grandparents' Visitation Rights in Tennessee" »

In Tennessee, divorcing parties are entitled to an equitable division of their marital property, but the courts have no jurisdiction to distribute property classified as separate property. While Tennessee law specifically defines what is classified as marital property and separate property, some types of assets, like Supplemental Security Income, are not easily classified. Supplemental Security Income (SSI) is often confused with social security disability, but the two are not the same. A recent decision by the Tennessee Court of Appeals distinguishes the two and establishes that SSI payments do not fall within the statutory definition of “marital property” in Tennessee.

In the case introduced above, Husband and Wife were getting a divorce in Tennessee after roughly seventeen years of marriage. After the divorce decree was entered, Husband appealed on the grounds that a lump sum SSI payment awarded to Wife during the marriage should have been considered marital property under the Tennessee statute and thus should have been divided equally among the parties. Husband argued that SSI payments were effectively social security disability payments and were thus marital property under Tenn. Code Ann. Section 36-4-121(C). The Court distinguished SSI from social security disability payments by showing that SSI payments are a form of public assistance given to those who may not be able provide for themselves and such payments “have nothing to do with earnings a person may have had,” while social security disability payments are directly tied to the amount a person has paid in to the Social Security System. The Court thus concluded that SSI payments did not fall within the language of Tenn. Code Ann. Section 36-4-121. The Court further explained that even if SSI payments were considered similar to social security disability payments under the statute, they still would not fall under the definition of marital property, because they are not remuneration for employment and thus do not fall under the statutory language classifying such payments made as recovery for wages lost during the marriage as marital property.

Continue reading "Supplemental Security Income is Not Marital Property" »