Kids Are Expensive $!$

It is commonly said that one of the most expensive choices that can be made in life is having children. According to CBS News, the cost of raising a child from birth to age seventeen is approximately $310,000![i] In Tennessee the payment of child support is mandatory in cases where the child is born out of wedlock, where the parents are divorced, or where there is a domestic violence order of protection. The Tennessee child support guidelines may be found in Chapter 1240-02-04 of the Rules of the Tennessee Department of Human Services Child Support Services Division. The Social Security Act located at 42 U.S.C. §§ 651-669 requires states to establish guidelines for setting and modifying child support. Tennessee Code Annotated §§ 36-5-101(e), 71-1-105(a)(15), and 71-1-132 implement these requirements and direct the Tennessee Department of Human Services to establish guidelines to enforce those provisions of federal law.

In general, a child support order is based on the alternate residential parent’s earnings, income, and other evidence of ability to pay. The Child Support Guidelines define important terms in 1240-02-04.02 including Adjusted Gross Income, Adjusted Support Obligation, Alternate Residential Parent, Days, Pro Rata, and uninsured medical expenses.

The theoretical underpinning of Child Support in Tennessee is the Income Shares Model. The Child Support Guidelines describe this as: “This model presumes that both parents contribute to the financial support of the child in pro rata proportion to the actual income available to each parent.”[ii] The Tennessee Child Support Guidelines claim that over forty other states also use the Income Shares Model and that it is generally based on economic studies of child-rearing costs.

The most important factors that determine what child support is set at are:

• Income of the parties – The lower the income of the parents, the lower child support is set at. The higher the disparity of income between the parent paying child support and the other parent, the higher the child support will be. There is a statutory maximum.
• Parenting time that each parent exercises – Child support is lowest in a joint custody/split custody situation where each parent exercises the same amount of parenting time. Child Support is highest in the event one parent exercises all the parenting time (365 days) and the other parent exercises 0 days per year.
• Number of Children – Child support is higher when more children are involved.

Below are answers to Frequently Asked Questions regarding Child Support that I have fielded in my significant experience as a family lawyer in Tennessee:

Is there a statutory maximum for Child Support in Tennessee?  

Yes these are:

• $2,100 per month for one child
• $3,200 per month for two children
• $4,100 per month for three children
• $4,600 per month for four children
• $5,000 per month for five or more children

Who has to pay for uncovered medical expenses for the children?

This is established in the Parenting Plan. Most commonly the parents pay Pro Rata in accordance with their incomes or 50/50.

What if one of the parents has other children in his/her home?

If that parent has a legal obligation to support the child, such as the child was born from him/her or the parent has legally adopted that child, then that child should be included in the credit for other in-home children section of the child support worksheet and the child support should be adjusted to account for that child/children.

What about work related-child care expenses; does this count?

Yes. Work related childcare expenses found by the tribunal to be reasonable are includable in the child support worksheet and do adjust the child support amount calculated by the worksheet. Unfortunately, the guidelines do not further define what is reasonable, so in my experience the issue seems to be entirely left to the discretion of the trial court Judge.

The other parent doesn’t have a job; can he/she still be ordered to pay child support?

Yes. Tennessee law allows the Court to determine whether income should be imputed to a parent because that parent is willfully unemployed or willfully underemployed. An example of being willfully underemployed would be a licensed doctor working a minimum wage job. In such a situation the doctor could get a job as a medical professional making significantly more money. In such a case, the Court may impute income requisite with the doctor’s past earnings or evidence showing what the market rate is.

Is there an average wage that may be imputed for men and women in Tennessee for child support purposes?

Yes. That amount is $37,589 annually for male parents and $29,300 annually for female parents.

Can I adjust my child support?

Maybe. Tennessee law requires there to be a 15% variance before a child support order may be amended. This means that if the child support is currently set at $500 per month the support would need to be adjusted by at least $75 at or above $575 per month or at or less than $425 per month.

What can I do if the other parent is not paying their child support?

You may start by contacting your local child support office to see if they can help. You may also consult with an attorney. In general, child support is punishable by contempt in Tennessee. Thus, the non-paying parent may be subject to fines, imprisonment, and paying the attorney’s fees of the other parent depending on the circumstances and what the Court decides to do to address the situation.

If you have additional questions about Child Support in Tennessee that applies to your specific situation, don’t hesitate to reach out to our team of family law attorneys at Cole Law Group at 615-490-6020. Our team has successfully litigated hundreds of family law cases and is prepared to assist you in navigating, litigating, and resolving your family law dispute today.

[i] https://www.cbsnews.com/news/raising-a-child-costs-310000

[ii] https://publications.tnsosfiles.com/rules/1240/1240-02/1240-02-04.20211001.pdf See 1240-02-04.03

Custody Determination and the Permanent Parenting Plan

Throughout Tennessee, courts are often tasked with rendering an initial child custody determination regarding one or more minor children between parents. These custody decisions – which are ultimately enshrined in the law in the form of court orders issued by a Tennessee court of competent jurisdiction – may occur between parents regardless of whether they are married. At the conclusion of a case where child custody is at issue, the courts in Tennessee will enter a Permanent Parenting Plan, setting out the parenting schedule between both parents for their children, and making provisions for the payment of child support, health insurance, and other important matters pertaining to the parties’ child(ren).

Once a Tennessee court has made a child custody decision, a parent displeased with the custody decision can appeal. However, if there is a significant change in the circumstances surrounding the child custody decision such that the Permanent Parenting Plan needs to be modified in order to continue to serve the best interests of the child or children, then a parent may seek a modification of the Permanent Parenting Plan by a court of competent jurisdiction. Circumstances giving rise to a basis for modification are myriad and may include one or both parents relocating from the original jurisdiction where the child custody decision was originally made.

Modifying a Previous Custody Decision

When it comes to modifying previous custody decisions, a question that frequently arises is whether the court that made the original custody decision should be the court that makes the decision on whether the parenting plan should be modified. For example, consider the situation of a married couple going through a divorce in Tennessee with two minor children. As part of the divorce, the Tennessee court entered a Permanent Parenting Plan providing for the custody arrangements for their two children between both of the parents. Years later, both of the parents have remarried and relocated to two different states outside of Tennessee, and one of the parents wants to modify the Permanent Parenting Plan that was entered in the Tennessee divorce. In this scenario, is the Tennessee court that handled the parties’ divorce and made the initial child custody determination able to hear the case regarding modifying the parties’ Permanent Parenting Plan? Even if the Tennessee court has jurisdiction to continue to hear the case for modification of the custody schedule, is the Tennessee court really the best venue to hear the case, or should the case be transferred to a more convenient forum?

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

In order to answer these questions, it is important to examine the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”). The UCCJEA has been adopted by every state in the United States except for Massachusetts, and is also in effect in Washington, D.C., Guam, Puerto Rico, and the U.S. Virgin Islands. Although there are several important laws that may have bearing on the legal issues surrounding interstate custody disputes, the UCCJEA is arguably the single most important law when it comes to interstate custody disputes and the rules surrounding which court(s) will ultimately have the power to hear and decide upon a modification of a previously issued custody order from the court of a different state. Under federal law, a child custody determination made by the court of one state is generally required to be enforced by a court of a different state.

When TN Has Jurisdiction to Make Initial Custody Determination

Under the UCCJEA, a Tennessee court has jurisdiction to make an initial child custody determination only if:

1. Tennessee is the “home state” of the child on the date of the commencement of the proceeding, or was the “home state” of the child within six (6) months before the commencement of the proceeding and the child is absent from Tennessee but a parent or person acting as a parent continues to live in Tennessee;
2. A court of another state does not have “home state” jurisdiction, or a court of the “home state” of the child has declined to exercise jurisdiction on the ground that Tennessee is the more appropriate forum, and
3. All courts having jurisdiction under the first two options above have declined to exercise jurisdiction on the ground that a Tennessee court is the more appropriate forum to determine the custody of the child(ren); or
4. No court of any other state would have jurisdiction under the criteria specified in any of the other options above.

Provisions for Court Jurisdiction Under the UCCJEA

Importantly, under the UCCJEA, subject to a couple of important exceptions, when a court makes an initial child custody determination, that court generally retains exclusive, continuing jurisdiction to modify the child custody determination until the child reaches adulthood. Certain provisions of the UCCJEA govern jurisdiction to modify custody and stipulate that a court of a “new” state may not generally modify a custody determination made by a court of the “earlier” state unless certain conditions are met. Generally speaking, a court other than the court originally issuing the child custody determination will have jurisdiction to modify the previous custody determination under emergency circumstances or when the child(ren), the child(ren)’s parents, and any person(s) acting as a parent no longer reside in the state that made the initial child custody determination. A court of a “new” state may also have jurisdiction to modify a prior custody determination if the issuing state determines that it no longer has exclusive, continuing jurisdiction under the UCCJEA, and that the court of the “new” state would be a more convenient forum.

Why You Should Care

When it comes to interstate child custody disputes, the question of jurisdiction is often a threshold matter that must be addressed before any other issues can be handled. Moreover, the question of jurisdiction under the UCCJEA can be extremely complicated, and can have important effects on the adjudication of a custody case that could last for months or years. Due to the paramount importance of the well-being of children and the impact the adjudication of these issues can have on a child custody case, it is crucial that you promptly seek the advice of knowledgeable and experienced legal counsel if you are involved in an interstate or emergency custody dispute.

If you are involved in an interstate or emergency custody dispute, Cole Law Group’s Nashville family law attorneys can help. Give us a call at (615) 490-6020 to schedule a consultation.

When a couple seeks to end their marriage in Tennessee, the termination of the marriage is generally accomplished through divorce. The divorce process usually commences with one spouse filing for divorce in a Tennessee court of competent jurisdiction. Once the divorce litigation is initiated, it will progress in either an uncontested or contested fashion. In uncontested divorce cases, the divorce is finalized upon the court approving and incorporating a Marital Dissolution Agreement (and a Permanent Parenting Plan if there are minor children born of the marriage) into a final judgment of divorce. In contested divorce cases, the parties are unable to agree on a Marital Dissolution Agreement (and Permanent Parenting Plan if applicable), and the divorce is finalized by a trial judge upon the entry of a final judgment of divorce after a trial.

There is, however, a rare alternative to divorce: annulment. Annulment is only available if grounds for annulment existed at the time a couple married. In other words, there must have been a defect in the marriage from its inception that renders it subject to annulment, and the spouse seeking the annulment has the burden to prove that the defect existed at the time of the marriage. Simply put, grounds for annulment in Tennessee do not arise after a couple marries, although they may be grounds for divorce.

In Tennessee, marriages subject to annulment are either void or voidable.

A void marriage is one that can be annulled during the lifetimes of the couple, but may also be challenged after the death of either or both of the spouses. If a marriage is void, it is invalid from the moment of its inception – sometimes, this is referred to as being void ab initio. Even if a marriage is void, it is still generally useful to bring a formal annulment proceeding in a court of competent jurisdiction so the court can make clear the marital status of the parties and adjudicate any issues related to children or property. Marriages that are prohibited by law are void.

A voidable marriage, however, is a marriage that is valid unless and until it is annulled. Importantly, a voidable marriage can only be annulled during the lifetime of the parties. If one of the spouses in a voidable marriage dies, the marriage will no longer be able to be annulled, and it will thereafter be considered a valid marriage even though it may have been voidable before the death of one of the spouses.

Under Tennessee law, there are several grounds for annulment, and these grounds are further divided between void marriages and voidable marriages.

A marriage is void from the beginning under the following circumstances:

1. when either party was already lawfully married (bigamy);
2. when the parties are within prohibited degrees of kinship, closer than first cousins (incest);
3. when, for any other reason, the marriage was prohibited by law, and its continuance is in violation of law.^[i]

A marriage is voidable from the beginning under the following circumstances:

1. when either party was insane;
2. when the complaining party was under duress;
3. when one of the parties was under the age of consent at the time of the marriage;
4. when the consent to marry was obtained by force, fraud, or was given by mistake;
5. when the defendant was impotent;^{[ii] [iii]}

Although many couples may prefer for their marriage to end in annulment rather than divorce, in Tennessee the overwhelming majority of marriages end in divorce rather than annulment. This is partially because, although annulment is possible or even required under certain circumstances, the grounds for annulment are often narrowly construed, and most couples simply do not meet the necessary legal criteria to have their marriage annulled.

If you believe that your marriage is void or voidable and that annulment may apply to your marriage, you should seek the advice of a knowledgeable Nashville divorce attorney as quickly as possible. Annulment plays an important role in domestic relations law in Tennessee, and even if annulment is found to not apply in your particular situation, it may lead you to analyze other factors that could be relevant to divorce. Contact Cole Law today at 615-490-6020 to schedule a consultation and learn more about whether annulment may be an option for you.

ABOUT THE AUTHOR: Andy Goldstein

Andy Goldstein is an Associate Attorney at Cole Law Group. He is a graduate of Belmont University College of Law and is admitted to practice in Tennessee state courts, the United States District Court for the Middle District of Tennessee, the United States District Court for the Western District of Tennessee, the United States District Court for the Eastern District of Tennessee, the United States Court of Appeals for the Sixth Circuit, and the Immigration Courts of the Executive Office for Immigration Review (EOIR). Andy focuses his practice in the areas of Family Law, Defamation & Privacy, Probate, and Complex Civil Litigation. Cole Law Group clients benefit from Andy’s passion for the law and dedication to serving them well.

Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an experienced lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.

^[i] Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted).

^[ii] For the ground of impotence to sustain an annulment under Tennessee law, one spouse must be physically unable to have intercourse, the impotence has to be permanent, and the impotence must have existed before the marriage.

^[iii] Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted).

The main concern of most parents in Tennessee is the welfare of their child.  However, occasionally a single parent or a family will find themselves in the unfortunate and often heart-wrenching situation of dealing with the legal issue of emergency child custody. Emergency custody matters may arise due to any of the following:  the commitment of a serious offense by a minor child, the death of one or both parents, the incarceration of one or both parents, or the severe abuse or neglect of a minor child. In such cases, the Tennessee Department of Children’s Services (“DCS”) is mandated to investigate. The DCS mission is to “provide high quality prevention and support services to children and families that promote safety, permanency, and well-being.”¹

Tennessee custody laws are statutory. Thus, reading the section of Tennessee law that governs Juvenile Courts and Proceedings affords the reader a good idea of what law applies in specific emergency custody situations.²

How Can One Complaint Result in Emergency Custody Litigation?

Emergency custody litigation may commence due to a complaint made by a concerned individual to law enforcement or the Child Abuse Hotline. It can also begin with someone  filing a petition in the Juvenile Court of the county in which the child resides. Petitions for dependency, neglect, or severe abuse will often request the Juvenile Court to transfer temporary legal custody.³ In my experience as a child custody lawyer, petitions are often based on exposure of the child to drug use, mental incompetency, negligence, abuse, or the criminal activity of a parent/custodian.

In some custody litigation cases, the child will remain with the parent(s) or other legal guardian until a hearing on the petition can occur. However, if a child is at immediate risk for mental or physical harm, a judge may decide to place that child in physical state custody. A child could also be taken into detention or placed in shelter care prior to a hearing when there is probable cause that the child will abscond or be removed from the jurisdiction of the court. In either case, there would be no other alternative  than to remove the child from the custody of his or her parent(s), guardian or legal custodian and be placed in shelter care prior to a hearing on the petition.⁴

Who Will Care For My Child in State Custody?

In cases where the parent or other legal guardian is divested of custody until a hearing on the petition occurs, DCS will often work with the family to try to locate and vet potential temporary custodians of the child. DCS must determine that the temporary custodians are fit and suitable to have custody of the child. Temporary custodians must pass a DCS background check and drug screen in order to be approved. DCS often tries to first place a child with a family member or family friend before placing a child with an unrelated foster parent.

What Should I Expect in an Emergency Custody Hearing?

During each court hearing in Juvenile Court, the presiding Judge has authority pursuant to Tennessee law to issue orders regarding custody. This includes primary legal custody and visitation by parents and other relatives either in person, via phone, Facetime or  similar technology. Participants may be given a chance to testify before the Judge as to why the parent/custodian should be granted custody or visitation.

Participants at a hearing should expect the DCS caseworker to give a report to the court as to how the child is doing in his/her temporary custody and the results of parent/custodian actions with DCS. Parental interaction with DCS may include drug testing, educational programs in which the parent/custodian must participate, meetings with the caseworker, and anything else that is communicated to the parent/custodian by DCS. Pursuant to Tennessee law, the central determination of the Judge should always be the best interest of the child. A list of the factors that are considered by the court to be in the best interest of the child is found at Tenn. Code Ann. § 36-6-106.

There Can Be a Happy Ending

Experienced child custody attorneys understand emergency child custody situations in Tennessee. Their knowledge and expertise can help guide clients who are unfamiliar with the process through a very stressful period. No one wants to lose custody of their child or see a friend or family member go through such a struggle. In some cases, parents or custodians who lose custody initially are able to work with DCS and the Juvenile Court to complete specific actions that demonstrate the child is no longer at risk in their custody. When successful, the parent or custodian will regain custody of their child. The goal of the Juvenile Court system is for the parents/legal custodians to have  the resources necessary to provide safe care for the child and to reunite the family.

If you are dealing with an Emergency Child Custody matter in Tennessee, you should have an experienced child custody lawyer by your side. Cole Law Group’s Family Law Attorneys in Brentwood are prepared to help.  Call 615-490-6020 for a consultation as soon as possible.

________________________________

^¹ https://www.tn.gov/dcs/about-us/mission.html

^² Tenn. Code Ann. § 37-1-102 is a good place to start.

^³ Pursuant to Tenn. Code Ann. § 37-1-129 to -130.

⁴Tenn. Code Ann. § 37-1-114.

For parents sharing joint custody, now is a good time to reflect on how the past year went for them and their children to ask the same questions: What is working? What isn’t? Was time divided equitably?

Before making New Year’s resolutions, start to think about how you can resolve to have a smooth custody plan in 2017.

Sharing the holidays

Everyone is in the midst of the winter holiday season, and it’s an opportune time to think about how the holidays impacted the custody plan in 2017. Did each parent feel they got a fair amount of time with their children throughout the annual holidays? If not, this is a good time to discuss creating a holiday schedule for 2018 with your ex-spouse.

Extended family time

How did the custody plan affect extended family members, such as grandparents, aunts, uncles and cousins? Were the children spending more time with one parent’s family than another’s? Grandparents have visitation rights in Tennessee, and it’s a good time to consider whether or not the grandparents were able to fully exercise those rights last year.

Vacations

If one parent wanted to take a vacation with the children last year without an advanced plan, it may have ruffled some feathers. Take some time to consider what you would like your vacations to be in 2018 and how long they would be. Discuss these wishes with your ex-spouse and develop an equitable vacation schedule for each parent.

Involvement in extra-curricular activities

Noncustodial parents have the right to receive at least 48 hours notice of all extra-curricular activities. Were those rights met in 2017? If not, how can both parents work together on a system that allows for that communication?

Impact on the children

Most importantly, how do your children feel the past year went? What worked for them? What didn’t? As much as your schedule needs to be made in cooperation with your ex-spouse, the input of your children is probably more important than how the schedule impacts either of you.

Taking the opportunity to reflect on your child custody plan as you reflect on your entire 2017 can give you and your ex-spouse an opportunity to collaborate on a more defined schedule that fits the needs of their children and themselves.

Under Tennessee law, the fundamental right to care and to have custody of a child is one of the oldest judicially recognized interests protected under federal and state law. Termination of a parent’s rights is considered to be “a grave and final decision, irrevocably altering the lives of the parent and child involved and ‘severing forever all legal rights and obligations’ of the parent.” Means v. Ashby, 130 S.W.3d 48, 54 (Tenn. Ct. App. 2003) (quoting Tenn. Code Ann. § 36-1-113(I)(1)). It is for this reason that Courts continue to allow an imprisoned parent to be involved in his or her child’s life, despite the crime(s) he or she has committed. However, can allowing such visitation be mentally and emotionally damaging to a child?

A recent study, funded by the National Institute of Justice, indicated that approximately sixty-five (65) percent of children reacted negatively to visiting an incarcerated parent. Among those that reacted negatively, the parental caregivers characterized the children’s reactions as largely emotional, often involving expressions of fear, anger and anxiety, resulting in excessive outbursts, crying and symptomatic depression. Alternatively, only thirty-five (35) percent of children reacted positively to visiting an incarcerated parent. In some cases, the children exhibited heightened spirits and improved good behavior during visits, often with a promise of future visitations as an enticement for this good behavior.

Interestingly, a child’s reaction often depended on the correction facility and the prior parent-child relationship. For example, if a child is forced to endure long drives to the correctional facility, invasive search procedures and/or poor treatment by the correctional employees, the child is more likely to react negatively to visiting an incarcerated parent. Furthermore, if the visiting rooms are less conducive to a family-like atmosphere and limit the interaction with the parent, the child is more likely to act out or have a negative reaction to the visitation.

The parent-child relationship prior to incarceration also significantly effects how the child may react to visiting an imprisoned parent. If the child did not have a strong parental attachment, or perhaps even had a negative attachment to the parent, the child displayed symptoms of having an adverse reaction to visiting the parent due to the previous strained relationship. Alternatively, this was not the case if the child had a strong, healthy relationship with the parent prior to incarceration.

Even though the judicial system has the best of intentions in allowing incarcerated parents to continue having visitation rights, the Courts are also required to examine what is in the best interest of the child. While, granted, it is agreed that termination of parental rights is not an applicable solution for a majority of situations, the Court may determine that the potential long-term emotional, mental, and behavior effects of visiting an incarcerated parent could be a significant factor in determining the number of visiting hours an incarcerated parent is entitled to. Furthermore, it is essential to remember that no two situations are alike, and this is why the circumstances of each case must be evaluated and the Court must consistently continue to examine what is in the best interests of the child in question.

If you are the primary caregiver of a child whose mother or father is incarcerated and are concerned about the effect this environmental upbringing is having on your child, please contact Cole Law Group, so we may evaluate the circumstances of your situation and assist you in determining if a reevaluation of the terms of your permanent parenting plan, or parental visitation schedule, is in the best interests of your child.