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Articles Posted in Child Custody

Cole Law:  Interstate and International Custody DisputesThere are arguably no situations more pressing or serious than those involving the custody of your children. In the context of divorce, determining child custody is often the most contentious aspect of the entire lawsuit, and despite issues of property division and alimony often becoming hotly contested issues in their own right, both parents often find themselves fighting with their greatest vigor to protect their right to control the upbringing and development of their children after the bonds of legal matrimony are finally dissolved. If the parents never married, disputes over child custody can become the sole contested issue in a legal dispute. Under Tennessee law, child custody can become an issue in a myriad of different family law proceedings.

Nevertheless, while many parents may think that custody disputes are something that always get resolved at the local courthouse, legal disputes over child custody can often traverse several states or even several countries. To make matters even more complicated and pressing, one parent may take physical custody of the children without the knowledge or consent of the other parent, and it may not even be clear where the children are located or who is with them at the time a parent wants to file a legal action for custody in such exigent circumstances.

For example, imagine a situation in which you have been married to your spouse for approximately fifteen years and you have two minor children, ages twelve and fourteen. One day, after working long hours, you come home to find a note from your spouse saying, “I just can’t take this anymore. I’m leaving and I’m taking the kids with me. I think we may eventually stay with my parents but I’m not sure when. Don’t try to follow us.” After reading the note several times over, you frantically search the house only to find that both of your children are gone, many of their clothes are missing from their closets, and neither the children’s passports nor suitcases are anywhere to be found. In what seems like the blink of an eye, your children are gone, and you don’t know when – if ever – you may see your children again. What can you do?

As 2017 winds down, people are looking back at their past year. Was it a good one? What could improve next year?

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.

As a rule, the Courts have historically encouraged the visitation rights of parents, despite separation of the parties, believing that a relationship with both mother and father is essential to the upbringing of a child. However, what if a parent is incarcerated? Do the Courts still encourage visitation if a parent is imprisoned? Can visiting a parent in jail/prison be detrimental to the mental and emotional development of a child?

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.

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