Tennessee Court Cases Important to Family Law, Parents, Children and others
Important Tennessee Family Law Cases
The U. S. Supreme Court, in Troxel v. Granville, has upheld the State of Washington's Supreme Court holding that its grandparent visitation law is unconstitutional. The opinion is narrowly drawn with three dissents and two concurring opinions and does not necessarily effect other States' grandparent visitation laws. Meanwhile Tennessee has passed yet another version of the grandparent visitation law. Click here to see the new Tennessee Grandparent visitation law.
The Tennessee Supreme Court has decided that its OK for you to go to jail without a jury trial. In a unanimous decision the Court said you are not entitled to a jury trial for criminal contempt charges. They are, of course, horribly wrong, but unfortunately for Tennesseans, they have the last say. This is an example of why we need judicial elections. Perhaps a move to Iraq is in order. Ahern v. Ahern, __ S.W.3d ___ (Tenn. 2000) Click here to see the case.
Much to the horror of government geeks, the Tennessee Court of Appeals has ruled that it should not declare fathers to be fathers if they are not the father. This can occur no matter what has gone on in court previously. The case is White v. Armstrong; click here for the case.
The Court of Appeals has issued a concurring opinion that would indicate the Child Support Guidelines are probably unconstitutional. In a thinly veiled threat to the Tennessee Department of Human Services, the Court told them to fix the problem or the Court will fix it for them. The case is Randolph v. Poteet; click here for the case.
Jury trial required for violating Tenn. Code Ann. 36-5-104(a) regarding child support. Brown v. Latham,914 S.W.2d 887 (Tenn. 1996).
Defines when a child graduates high school for termination of child support purposes. Stevens v. Raymond, 773 S.W.2d 935 (Tenn. App. 1989).
Ex-wife's boyfriend claims he got beat up by her ex-husband, who denies it happened. This case stands for the proposition that ex-wives' boyfriends have no standing to get an Order of Protection against an ex-husband. Probably a good idea. Garrison v. Burch (Tenn. App. 2001)
Newsworthy Cases
NEW CHILD SUPPORT RULES ARE FINALLY HERE, YOU WON'T LIKE THEM
The Tennessee Department of Human Services has finally issued its new rules pursuant to the change in the law I helped write last year to treat children equally. They have taken a relatively simple task, i.e., treating each child the same and turned it into a 70 page nightmare. It became effective January 16, 2005 and they made damn sure it does not apply to existing cases.Lawyers will be charging more as a result of these Guidelines, which will lower parents' ability to support their children. I could name several judges that I know for certain will never be able to determine child support from these Guidelines because they are mathematically challenged. They have created a web page to help, click here and good luck, you will need it.
SUPREME COURT UPHOLDS EQUAL PARENTING TIME, BUT REQUIRES CUSTODIAL DESIGNATION
September 27, 2004
The Court ratifies equal parenting time but requires a designated custodian and a determination that the designated custodian be awarded child support (which can be $0). There will be a lot of money paid to lawyers to be the designated custodian because the reality is that individual is in control and can impact the non custodial parent in a negative manner. In other words the non custodial parent gets punished even if and lets be honest here, HE spends as much time as SHE does with the child. Hopkins vs. Hopkins
TENNESSEE SUPREME COURT LIMITS GRANDPARENTS RIGHTS TO INTERVENE IN PARENTAL TERMINATION CASES
June 17, 2004
Grandparents were not entitled to intervene as of right in parental termination proceedings. Grandparents failed to demonstrate sufficient grounds for intervention as of right. This ruling does not leave the Grandparents without a remedy. They may participate in the termination proceedings as witnesses, they may file a petition for custody or adoption, or they may elect other appropriate options. Gonzalez v. State of Tennessee DCS
CASE OF FIRST IMPRESSION ADOPTING CALIFORNIA LAW - JUDGE TODD ROLLING IN HIS GRAVE
June 22, 2004
In a case of first impression adopting a California case the Court has violated my friend, mentor, and former Presiding Judge Henry F. Todd's most important rule when a lawyer attempted to convince the Court to follow California law: "Mr. Lawyer, we live in Tennessee not California." I expect Judge Clement, who wrote the opinion, to be haunted by Judge Todd's ghost. In this case an unmarried couple in their forties decide to have children. Due to the woman's concern that she may be too old to produce viable eggs, the couple engaged the services of an in vitro fertilization clinic and signed contracts required by the clinic, following which the clinic obtained eggs from an anonymous female donor, which were fertilized with the man's sperm and then implanted in the woman who carried them full term resulting in the birth of triplets. Thereafter, the couple separated and the woman filed for custody. The man answered and asserted that the woman is not the mother or a legal parent of the children because she was merely a gestational surrogate who has no genetic tie to the children. The man further asserted that the children have no mother because the egg donor waived her parental rights. The trial court held that the woman is the mother of the children, awarded joint custody to the couple and primary custody to the woman. The man appealed. We affirm, finding that the woman is a legal parent and the mother of the children based on the intent of the parties. This will be appealed to Supreme Court. Click here.
GOVERNOR SIGNS NEW LAW ON CHANGING VISITATION
May 24, 2004
The Governor has signed a new law allowing for an easier change in visitation orders. Prior to this act it was relatively easy for vindictive mothers and their lawyers (you and I know who you are) to prevent reasonable and beneficial changes in visitation orders. Click Here.
NEW CHILD SUPPORT GUIDELINE TEMPORARY RULES PUBLISHED BY DHS
July 1, 2003
New temporary child support guidelines have been issued by DHS as a response to the passage of SB 0497/HB 1716, now Public Chapter 373, and to be codified at Tenn. Code Ann. § 36-5-101(e)(4). They are good for 165 days and public comment meetings were held in Memphis, Jackson, Nashville, Chattanooga, Knoxville, and Johnson City. These are temporary rules and public comment is invited by DHS. This will in part determine the final rules and it is important that comments are sent to DHS. Those who read them will not be happy. Click here to view rules in PDF Format.
LEGISLATURE OVERTURNS FOOLISH SUPREME COURT DECISION
June 19, 2003
The Tennessee Supreme Court, while admitting that the child support guidelines discriminate against children, held that they do not violate the equal protection clause of both Tennessee and United States constitutions, because they have a rational basis and do not impinge on any fundamental rights. In other words in Tennessee its all right to have to first and second class children. In plain language, this means if you divorce, get married again, and have more children your new children will be punished. It also means the court does not have to take into account all your children when setting child support. Click Here for the Gallaher v. Elam Case. The legislature fixed what the Court broke by legislation. Click Here for the New Law which becomes effective July 1, 2003.
RETIREMENT AND ALIMONY - MAJOR CHANGE IN THE LAW
November 8, 2001
If you are paying permanent alimony, the greatest case in the history of the Supreme Court for Tennessee is Bogan v. Bogan, which gives you the right to retire and reduce or terminate alimony. Prior to this case you had to pay until you were dead. Tom Bloom, the lawyer that won, wants a donation from every man in Tennessee on this one. He deserves it.
WORST SUPREME COURT DECISION IN TENNESSEE HISTORY
March 20, 2000
The Tennessee Supreme Court has decided that its OK for you to go to jail without a jury trial. In a unanimous decision the Court said you are not entitled to a jury trial for criminal contempt charges. They are, of course, horribly wrong, but unfortunately for Tennesseans, they have the last say. This is an example of why we need judicial elections. Perhaps a move to Iraq is in order. Ahern v. Ahern.
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NO RETROACTIVE MODIFICATION OF CHILD SUPPORT
December 31, 2002
Once a child support order has been issued, subsequent modification proceedings apply only from the date of the filing of the Petition to Modify. You may not modify child support prior to that date. In this case the Trial Court modified Respondent's child support for the five years previous to the filing of the Petition to Modify. You can't save it up and use it to attack later. The trial court was reversed. My favorite words. Norris v. Norris
TENNESSEE SUPREME COURT REVISES STANDARD FOR CHANGE IN CUSTODY
November 1, 2002
Once a valid order of custody has been issued, subsequent custody modification proceedings should apply the standard typically applied in parent-vs-parent modification cases: 1. that a material change in circumstances has occurred, 2. which makes a change in custody in the child's best interests. The threshold issue is whether a material change in circumstances has occurred after the initial custody determination. There are no hard and fast rules for determining when a child's circumstances have changed sufficiently to warrant a change of custody, the following factors have formed a sound basis for determining whether a material change in circumstances has occurred: the change has occurred after the entry of the order sought to be modified, 1. the change is not one that was known or reasonably anticipated when the order was entered, and 2. the change is one that affects the child's well-being in a meaningful way. A parent's change in circumstances may be a material change in circumstances for the purposes of modifying custody if such a change affects the child's well-being. The Court did acknowledge the recent legislative change deleting the requirement for a showing of a "substantial risk of harm," but leaves the criteria unacceptably vague. Kendrick v. Shoemake
LEGISLATURE REMOVES "SUBSTANTIAL HARM" FOR CHANGE OF CUSTODY
July 3, 2002
The Tennessee legislature has removed the requirement that a non custodial parent must prove the custodial parent is subjecting the children to a risk of "substantial harm" in order to change custody. The Tennessee Appellate Courts have been tending in this direction, but the legislation now makes it clear to the Trial Courts, they are being reigned in, at least for custody hearings. Click Here for the New Law
TROUBLESOME SUPREME COURT CASE HARMS PARENTAL RIGHTS
May 3, 2002
The Court holds ". . . that a natural parent is NOT generally entitled to invoke the doctrine of superior rights to modify a valid custody order awarding custody to a third party. Instead, in the absence of extraordinary circumstances—for instance, the natural parent was not afforded an opportunity to assert superior parental rights in the initial custody proceeding; the custody order is invalid on its face; the order is the result of fraud or procedural illegality; or the order grants only temporary custody to the non-parents—a trial court should apply the standard typically applied in parent-vs-parent modification cases: that a material change in circumstances has occurred, which makes a change in custody in the child's best interests." The Court does appear to clarify the change of custody standard to eliminate the need for a showing of "substantial harm." Blair v. Badenhope
NEW LAW RESTRAINS DIVORCING PARTIES FROM BEING OBNOXIOUS
May 16, 2001
Tennessee has passed a law restraining divorcing parties from doing various improper acts against each other and their children. Click here for the law.
5% FEE GONE ON NOVEMBER 1, 2001
October, 2001
Pursuant to my class action lawsuit against DHS on behalf of custodial parents, notices to employers and non custodial parents will be sent in October advising them NOT to send the 5% fee in their child support payments. Payments containing the 5% fee after November 1, 2001 will be credited as child support. Those persons paying support through local court clerk's offices must continue paying the 5% fee as the victory in the class action lawsuit against DHS does not involve the clerks and the law still allows them to collect the fee. The 5% fees collected from October 1, 1999 until June 1, 2001 WILL NOT BE REFUNDED. The 5% fees collected from June 1, 2001 through October 31 will be paid to the custodial parent and credited as child support payments to the non custodial parents sometime in February or March 2002. After the refund, you MUST continue paying support in the regular manner, i.e., what you can't do is not pay your full regular support payment and take credit for the refund. You must wait until the end of your support obligation or you may petition the court to determine how to balance your child support account. Those persons that have never been involved with welfare or local child enforcement agencies will have to petition the court to modify their court orders removing the 5% fee. Click here for the Settlement Agreement.
COURT RULES STATE CANNOT IMPOSE 5% FEE ON CHILD SUPPORT COLLECTIONS
June 12, 2001 After 18 months of brutal legal battles, the 5% fee charged on child support paid through the state's central collection unit HAS BEEN FOUND TO VIOLATE FEDERAL LAW by judge Walter Kurtz, Fifth Circuit Judge for Davidson County, Tennessee. Click here for the 5% Fee Order. Previously the Court entered an extensive order setting forth the collection system's problems and directing the State to issue notices to parents telling them where their money is going, so they can spot errors. Click here for the Notices order.
PERRY MARCH CHILDREN ORDERED RETURNED TO MEXICO
April 19, 2001
The international custody battle in this case seems to have been resolved in favor of the children's father. Whatever you think about Perry March, the case is a good read for those interested in international custody disputes and the Hague Convention. Click here for the March v. Levine case.
PARENTING PLAN IS THE LAW
June 15, 2000
With a great assist by the Memphis legislative delegation and DADS we have a parenting plan. The new law became effective January 1, 2001. Click here for the forms and law.
U. S. SUPREME COURT WEIGHS IN ON GRANDPARENTS
June 5, 2000
The U. S. Supreme Court, in Troxel v. Granville, has upheld the State of Washington's Supreme Court holding that its grandparent visitation law is unconstitutional. The opinion is narrowly drawn with three dissents and two concurring opinions and does not necessarily effect other States' grandparent visitation laws. Meanwhile Tennessee has passed yet another version of the grandparent visitation law. Click here to see the new Tennessee Grandparent visitation law.
PARENTAGE TESTS BECOME MORE IMPORTANT
January 27,1999
Much to the horror of government geeks, the Tennessee Court of Appeals has ruled that it should not declare fathers to be fathers if they are not the father. This can occur no matter what has gone on in court previously. The case is White v. Armstrong; click here for the case.
CHILD SUPPORT GUIDELINES UNCONSTITUTIONAL?
March 17, 1999
The Court of Appeals has issued a concurring opinion that would indicate the Child Support Guidelines are probably unconstitutional. In a thinly veiled threat to the Tennessee Department of Human Services, the Court told them to fix the problem or the Court will fix it for them. The case is Randolph v. Poteet; click here for the case.
STATE COMPUTER CREATES DEAD BEAT PARENTS
January 17, 1999
Many non-custodial parents whose child support payments are current are receiving letters from the State of Tennessee telling them they are way behind in their support payments and their tax refunds will be intercepted. The excuse is "computer error"; try telling that to the IRS when you ask for your wrongfully intercepted refund back. Call your legislative representatives to complain.
GRANDPARENT VISITATION DECLARED UNCONSTITUTIONAL
November 4, 1998
As previously predicted here, the Western Section Court of Appeals has determined that the Tennessee grandparent visitation statute is unconstitutional!!!! This unfortunate opinion was appealed to the Tennessee Supreme Court, which declined to hear the appeal. Click here to see the Ellison v. Ellison case.
MONEY TRIUMPHS OVER JUSTICE!!!
December 21, 1998
The Tennessee Supreme Court, with Justice Birch dissenting, has reversed, the March 20, 1998 Court of Appeals ruling that private attorneys may NOT be hired by parties in divorce, support, visitation, etc. actions to prosecute criminal contempt to collect money or punish a party. The Court basically held it was too expensive and inconvenient to follow the constitution. Justice Birch, in a well written opinion, unlike that of the majority, correctly dissented, saying "[t]his court should not link justice to the checkbook in so direct a manner." Good for him, he is on the side of justice, children's, and parents' rights. The rest of the court seems out of touch with reality. This unfortunate opinion was appealed to the United States Supreme Court, but it declined to hear the case.
Click here to see the full text of the Wilson v. Wilson case.
