Archive for the ‘Parental Rights’ Category

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.

Obligation to Pay Child Support

Monday, February 15th, 2010

A child support obligation generally arises as part of a permanent parenting agreement ordered by the court during a divorce or custody action. The amount of child support ordered is calculated based upon the time that each parent spends with the child; the income of each parent; the obligations of each parent to provide insurance, day care services, and the like; and other similar factors. Because of this, there is not much room to adjust the amount of support owed. There is a process through which the amount owed can be changed, but any modification is done based on the same formula, so there has to be a material change in circumstance. Most commonly, a modification is sought when one parent changes or loses his or her job.

If either parent fails to follow the mandates of the parenting plan, either by refusing to pay child support or by refusing to allow the other parent the proscribed visitation, that parent can be charged with contempt of court and will be given a hearing to explain why he or she has not followed the court’s orders. It is important to note that even if the parent has a valid excuse for not paying support, the amount of arrearage (the amount unpaid) is still due and will collect interest until paid. In most courts in Tennessee, the list of valid excuses is relatively small. For example, unemployment is probably not a valid excuse; neither is poor health unless the parent has gone on disability.

The most important thing that a person in contempt can do before the hearing is get back on track and start following the order. Even if a person has managed to get fifty thousand dollars behind on payments, the court would like that person to be making payments. If the court does not recognize a valid reason for violating the order, the court can order the offender incarcerated for up to 180 days. Remember, though, that the court is most interested in these cases in seeing that the order is being followed and will not throw anyone in jail on a whim.

Child support and contempt are complicated issues; if you are charged with contempt or need to modify a permanent parenting agreement you should consult an attorney. For more information on child support and other family law issues, click here.

Revisiting Grandparents’ Rights

Tuesday, February 2nd, 2010

An early post on this blog discussed the rights grandparents have to visitation or custody of their grandchildren. The general answer, of course, is none unless a court determines that it is necessary for the best interests of the child. Although we are focused on Tennessee law, obviously, a blog covering Indiana law (no affiliation to our blog) posted about an interesting bill passing through the Indiana legislature that is worth a mention.

Like every state, Indiana requires that a grandparent show that visitation is in the best interests of the child in order for a court to order visitation; unlike Tennessee, however, the Indiana legislature has specifically provided that a grandparent may sue for visitation if the custodial parent is single, divorced, or widowed. In Tennessee, grandparents may only seek visitation when the child has been adopted by a non-relative and neither original parent has custody rights. There is, of course, merit to both positions – a parent’s right to make decisions regarding the development of his or her child is paramount, but it may be best for a grandparent to have some influence as well.

If this Indiana bill passes, however, it will allow grandparents the right to sue for visitation even if both parents are alive, happily married, of sound mind, and raising their children as they see fit. While it is probably best for children to have involved grandparents, it seems unusual for a legislature to consider taking parental rights away without any showing of… anything, really. It would be a grand victory for grandparents, of course. If it passes, it will be interesting to see the results and if other states follow; it will also be interesting to see if the Supreme Court of the United States weighs in.

Grandparents’ Rights are a hot topic right now, and are not always clear. If you have questions or concerns about your rights as a parent or grandparent, you should consult an attorney. For more information on grandparents’ rights and other family law issues, click here.

Duration of Child Support Obligation

Monday, January 25th, 2010

An obligation to pay child support arises out of a court order and essentially is a pro-rated share of the costs of raising a child paid by the parent who has less time with physical custody of the child. Child support payments are meant to provide food, shelter, medicine, clothes, and other essentials for the child – gifts and niceties are out-of-pocket expenses and the court will not order a parent to provide funds for them in most circumstances. A parent does not have an obligation to provide gifts for his or her children, or even to like them, but a parent does have an obligation to provide support if so ordered by the court.

The order by the court mandating support will generally contain language limiting the obligation to pay. Most commonly, support is required so long as the paying parent does not relinquish his or her parental rights and the child in question is under age eighteen. Most importantly, the obligation exists until the court orders otherwise. The amount of child support owed is based in large part on the ability to pay at the time of the order. If the parent obligated to pay loses his or her job the following week, the obligation to pay remains, even if the loss of employment was for a valid medical reason. If a child for whom support is ordered is later adopted, it is possible that the obligation to pay from that point on does not exist. The obligation to pay up until the moment of adoption certainly exists, and the obligation after may exist, depending on the order.

If you are obligated to pay child support and the situation has changed significantly or you are entitled to receive child support and are not doing so, you should consult an attorney in your area. For more information on child support and other family law issues, click here.

Rules of Paternity in Tennessee

Monday, January 18th, 2010

Paternity of a child is one of the most common elements in family law cases. Child custody and support often hinge on the paternity of a child – as does marital dissolution, in some unfortunate situations. Legal paternity can be determined several ways. Legal paternity is, of course, not necessarily the same as biological paternity, although the two are often the same.

In Tennessee, a child born into wedlock is assumed under Tenn. Code Ann. § 31-2-105 to be the child of both the wife and the husband. Interestingly, even if the marriage is void the paternity is still legally established, so long as the couple underwent a marriage ceremony. Under that same law, adopted children are given legal status establishing paternity for the adopting father – this is the most common case wherein legal and biological paternity are not congruent.

When a child is born to unmarried parents, there is normally an acknowledgement of paternity by the father. His name will be listed on the birth certificate and by accepting paternity he has assumed the rights and responsibilities of paternity. Under Tenn. Code Ann. § 68-3-302, this acknowledgement is completely voluntary. The birthing institute is required by that law to have an authorized representative explain the consequences, rights, and responsibilities resulting from that acknowledgement.

If paternity is in question, which often occurs when the alleged father has refused to voluntarily acknowledge paternity and the mother has sued for support, the court may order genetic testing. Tenn. Code Ann. § 24-7-112 sets forth the procedure followed when multiple tests are performed with different results.

Many people take paternity for granted, but it is not necessarily a foregone conclusion. If you are involved in a case where paternity may be an important element, you should consult an attorney to ensure that necessary steps are taken. For more information on paternity and other family law issues, click here.

Parental Rights During Marriage

Monday, January 11th, 2010

Most of the time, attorneys are concerned with the rights of parents during or after divorce – people rarely hire a family law attorney if there’s not some marital problem. Occasionally, however, I get a call from a client who has not filed a divorce but has some questions about his or her rights regarding the children of the marriage.

Until the moment a divorce is filed, the legal system in Tennessee – and probably every other state – does not know anything about the marital satisfaction and assumes that both parties are happy and consenting. It will come as no surprise to learn that a parent in a happy marriage may take his or her child or children on a trip – even out of state – without the express permission of the other parent. Because the parents are married, there is implicit consent to the actions of each parent by the other. When it comes to major decisions in the child’s life – normally medical decisions – the same is true.

In fact, you can read back through this blog regarding the rights of parents after a divorce and the custody rights granted by courts to see what sort of parental rights and responsibilities exist. All rights and responsibilities are vested in both parents automatically during the marriage. If you have questions about your rights regarding your children before or after a divorce is filed, you should contact an attorney. For more information on parental rights and other family law issues, click here.

Adoption in Tennessee

Saturday, December 26th, 2009

Adoption, in short, is the transfer of parental rights and obligations entirely from one party to another through the legal system. In Tennessee the process can be broken into two parts in order to better understand what is actually happening.

First, the state terminates the parental rights and obligations of the current parent(s) of the child. There must be ample grounds for this to the point that the court determines that it is in the best interests of the child not to remain with those parents. Specifically, the petition to terminate rights “shall have the effect of forever severing all of the rights, responsibilities, and obligations of the parent(s) or guardian(s) to the child who is the subject of the order, and of the child to those parent(s) or guardian(s).” As with most family law issues, the legislature has left the courts with sufficient leeway to ensure that the correct result is reached, but some factors sufficient to support termination of parental rights are set forth in the statutes:

- Abandonment by the parent(s)
- Substantial noncompliance with an ordered Permanent Parenting Agreement
- Abuse or neglect that are unlikely to be remedied at an early date, such that the child has been removed for a period of at least six months
- Severe child abuse
- The parent or guardian has been sentenced to at least two years in prison for conduct against the child in question
- The parent or guardian has been confined in a detention/correctional facility for at least 10 years, and the child will be 18 before the end of the sentence
- The parent or guardian has been found guilty or civilly liable for the wrongful death of the other parent or guardian

In addition, a finding that a parent is incompetent to care for the child is sufficient to terminate parental rights, if in the court’s discretion it is in the best interests of the child.

Once parental rights have been terminated, the state must grant parental rights to a new person or persons. To be eligible to adopt, a person must be over eighteen years old, and must have physical custody or demonstrate to the court a right to receive custody of the child, unless they are filing an intervening petition seeking to adopt. Non-relatives must be residents of the state of Tennessee.

From the time that parental rights are terminated until the adoption is finalized, the child is placed in a foster home. The foster parents are given first preference in adopting the child, if the child has been in foster care for at least twelve months. The foster parents must meet all the standard requirements imposed on prospective adopting parents otherwise.
The requirements for adoption as a prospective parent determine whether the potential parents are financially capable of caring for the child as well as determining if they are mentally and physically fit to be parents.

If you are interested in adopting a child or at risk of losing parental rights, you should consult an attorney. For more information on adoption and other family law issues, click here.

Termination of Parental Rights

Wednesday, December 16th, 2009

The married parents of a child have inherent rights and responsibilities that attach automatically upon the birth of the child. Unmarried parents have the same rights and responsibilities, so long as paternity (or maternity, rarely) can be and is proven. The state of Tennessee recognizes, however, that some parents are unfit or unable to raise children and therefore has created a mechanism by which the parental rights can be removed. Obviously, the rights of parenting must be vested in some party, whether through adoption or simply by placing the rights and custody solely with the other parent.

The termination of parental rights must be done by a court in the state of Tennessee. That Court must find “clear and convincing evidence that the grounds for termination of parental or guardianship rights have been established;” and “that termination of the parent’s or guardian’s rights is in the best interests of the child.” The grounds for termination of parental or guardianship rights are generally based on a situation of abuse or neglect, although the statute makes it clear that the offense must be great in order to completely terminate parental rights. Severe child abuse, imprisonment for two years or more for conduct towards the child, cause of wrongful death for the other parent or a sibling, and things of that nature are the given standards.

The right to parent one’s children is a cornerstone of our legal system and in order to terminate that right, the courts in Tennessee must see no reasonable alternative. If you are in danger of losing your parental rights, or are the parent, extended family member, prospective adoptive parent, or the guardian ad litem of a child who is suffering neglect or abuse, you should consult an attorney about the situation and necessary defenses or possible action. For more information on parental rights and other family law issues, click here.

Custodial Interference

Monday, December 14th, 2009

Adoption is an interesting mechanic – essentially, the legal system replaces the parents of a child. Most people are familiar with the basic concept, and probably know someone who has adopted or who has been adopted. There are a lot of legal issues associated with the process, of course, since it is a legal construction.

The first real problem that many adopting parents face is that of custodial interference by the biological parents of the child. Once a child has been adopted, the parental relationship is legally severed between the biological parents and the child. If the biological parents physically obtain custody of the child without a court order, they have essentially committed kidnapping. Recognizing the unique situation, the state of Tennessee has created statutory language to that effect:

36-1-123 Biological parents illegally obtaining custody of a child — Custodial interference.
Any biological or prior legal parents or guardian whose rights to a child have been terminated by order of any court under this part or any other title or by the laws of any other state or territory, or foreign country, or by a surrender, parental consent, or waiver of interest, and who shall, otherwise than by legal process, obtain custody of the child shall be in violation of and shall be subject to prosecution pursuant to the provisions of § 39-13-306.

If you have a child, either biologically or through adoption, it is important to respect and understand the legal boundaries and responsibilities that come with a child. If you have lost custody of your biological child, you should contact an attorney about obtaining legal custody through the court system. For more information on child custody and other family law issues, click here.