Archive for March, 2010

Breaking Developments in Child Custody

Wednesday, March 17th, 2010

As reported in The Tennessean, a bill in front of the Tennessee legislature proposes to require custody to be split equally unless there is a showing of “clear and convincing evidence that one parent is unfit.” A clear and convincing evidence standard is a hefty one, lying somewhere between “more likely than not” and “beyond a reasonable doubt.”

The repercussions of this bill, if it passes, will be interesting to see; obviously, there are benefits to presuming that custody should be split equally, but there are also detriments to requiring such a high standard of proof. First, it should be noted that this only applies to cases wherein an agreement for custody cannot be reached by the parties (5-10% of divorces, according to article from The Tennessean linked above; this amount is presumably excluding divorces with no children involved). In cases with no foreseeable agreement and no clear and convincing evidence that one or both parents are unfit to have custody, it seems reasonable to presume that both parents should split the custody evenly. In cases where both parents played a major, if not necessarily equal, role in raising the child(ren) before the divorce, it is hardly fair to deprive one of custody. In some cases, one parent has stayed at home to raise children while the other parent has maintained a career to support the family – in those cases, it is reasonable to say that both have played a role in raising the child and that neither is an unfit parent, even if the working parent was not present with the child the majority of the time.

The detriments if this bill were to pass are many, however. Splitting custody equally, even between two equally perfect parents, is stressful to a child. If the parents live in separate school districts, where should the child attend school? Which parent’s house is the child going to recognize as “home?” A common solution, historically, to both of these has been to declare a primary custodian and then allow ample visitation during school holidays. If custody is to be split equally, though, having a child for two days on the weekend is not the same as five days during the work/schoolweek. If the parents live in different states, the complexities of actually fulfilling the order grow to the absurd – should the child be transported back and forth every six months and have no physical contact with the other parent for half a year?

In addition, if this bill passes it will likely be rare to see a contested divorce without accusations of unfit parenting being thrown around. Not only does this impact judicial efficiency, this also has a detrimental effect on the children involved. A cornerstone of family law has long been that the best interests of the child trump almost every other consideration, and further that each parent must make an effort not to insult the other in the child’s presence. This bill essentially offers a reward for doing just that.

Child custody is a major issue in most divorces and it is important to understand the rights and obligations of parents during and after the divorce proceedings. If you are involved in a custody dispute or divorce, you should seek legal counsel. For more information on custody and other family law issues, click here.

The Rights of Natural Parents

Monday, March 15th, 2010

When discussing family law and child custody, the rights of the parents are often restricted in favor of the “best interests of the child.” Courts do, however, give great deference to the rights of the natural parents. A family court in Australia recently issued a judgment showing just how much that court respect parental rights.

As reported here, the Family Court in Hobart, Tasmania, heard a visitation/custody case wherein the father of the two girls involved has been convicted on three charges involving child pornography. The court did order some concessions, in light of the convictions: the girls must share a bedroom in the home until the younger reaches the age of fourteen, the father must have an adult guest stay overnight if his daughters are staying overnight, and the girls must have a lock on their bedroom door in order to keep their father out.

We are unaware of any similar cases in Tennessee, but the scenario that played out in Australia is certainly possible in this state. I think most people are surprised by this result – certainly, very few family law attorneys would expect a court to order overnight visitation to a father convicted of sexual crimes involving a child. The compromise reached in Tasmania is an interesting solution to the issue and reflects the strength of parental rights, whether right or wrong.

Parental rights in Tennessee are an important consideration in custody and visitation cases. If you are involved in a custody or visitation case, you should consult an attorney to ensure that your rights are represented. For more information on parental rights and other family law issues, click here.

Conduct of the Parties after Marital Dissolution

Tuesday, March 9th, 2010

After a marriage has ended, the two parties often must maintain some form of relationship. Most commonly, that relationship is related to the children of the marriage – until those children are eighteen, the parents must meet the terms of their parenting agreement. There is a high likelihood, as well, that there are common friends who must either be divided between the parties or share time. If the parties are living in the same area, there is even potential that they will be shopping at the same time and in the same location.

The most pertinent example is, of course, that of transferring children between parents and the behavior of the parents in the presence of the children. Most parenting agreements and/or divorce decrees contain language that the parents must act civilly when together with the children present; in fact, under Tennessee law parents are required to refrain from speaking or acting in such a way as to influence children against the other parent.

In other situations or in marriages that do not involve children, the majority of the team the divorced couple is treated as if they had never been married. There is normally no requirement that they avoid contact, nor are they required to communicate unless ordered by the court. In some hotly disputed divorces, the court may issue orders of protection preventing each party from contacting the other. In the absence of a court order, though, there are no specific guidelines that must be followed by a divorced couple that do not apply to social interactions with anyone else.

If you are currently or previously have been involved in a divorce, your ex-spouse does not have a right to harass you or stalk you, nor to slander you. If you feel that your ex-spouse (or anyone else) is behaving inappropriately, you should contact an attorney. For more information about marital dissolution and other family law issues, click here.

Requirements for Annulment in Tennessee

Wednesday, March 3rd, 2010

We have touched briefly on the subject of annulment once before on this blog, but there is enough confusion about the topic that we feel it is worth another look. At least once each week our office gets a call for someone interested in a divorce or annulment. In Tennessee, we have to explain, an annulment is a highly specific form of marital dissolution.

In order to be eligible for an annulment in Tennessee, the marriage must have been void due to public policy or voidable at the discretion of the “victim” party. A marriage void due to public policy is generally one of three situations: a homosexual marriage, an incestuous marriage, or a bigamous marriage. A marriage voidable at the discretion of the “victim” party is usually voidable because consent to marriage was not properly available. This can arise due to an underage party, duress, mistake, or lack of capacity to contract. A marriage can also be voidable due to impotence in some situations, or if the woman becomes pregnant by a man other than her husband without her husband’s knowledge.

A void marriage is treated by the state of Tennessee as if it had never occurred, and is thus eligible for annulment. A voidable marriage is treated by the state of Tennessee as if it had occurred, but should not have and can be eliminated legally as if it had never occurred. Annulment is, then, not so much a form of ending a marriage but a method of giving official and legal recognition of a false marriage.

In most situations, parties to a divorce ask for an annulment because they regret the decision to marry. If that decision was made knowingly by two non-related single adults of opposite gender with the capacity to contract, an annulment is probably not available. A divorce is certainly available, however.

If you are in a marriage that is not valid or is not working out well, an annulment or divorce may be the correct answer. You should consult an attorney in your area to discuss your options. For more information on annulments, divorce, and other family law issues, click here.