In Tennessee, the Father of a child born out of wedlock must establish paternity and child custody through the Juvenile Court to obtain enforceable custodial rights to the subject child. When a child is born out of wedlock in Tennessee, and there is no court order establishing paternity and custody that allots parenting time to the parties, custody is presumed to be with the Mother. It is not enough that the Father is named on the child’s birth certificate, resort must be made to the Juvenile Court.

In such a case, the Father has no right to demand visitation with the child, and will be told by law enforcement, who are often contacted in such disputes, that it is a civil matter for which the individual will need to obtain the help of an attorney.

In most cases, paternity of the child will not be disputed as the Father’s name will be on the child’s birth certificate or the parties will have executed a voluntary acknowledgment of paternity, whereby the Father’s name is added to the child’s birth certificate. If paternity of the child is in dispute the Court will order DNA testing. An important note here is that in Montgomery County, the Juvenile Courts will almost always order that the child’s last name be changed to reflect that of the Father’s, without regard to the wishes of the Mother or other interested parties.

The Filing of A Petition To Establish Paternity & To Set A Permanent Parenting Plan Will Generally Accomplish Three Things.

First: The Father will be named the “legal” Father of the child. This is different than being named simply on the child’s birth certificate, and gives the Father legal custody rights to the subject child. Additionally, if the Father is not named on the child’s birth certificate, the Court will order the Father to be added, and that the child’s last name be changed to reflect the Father’s last name.

Second: The Court will determine which parent will be the Primary Residential Parent, and will allot parenting time to the parties based on a best interest’s analysis

Third: A child support amount will be set using the Tennessee Child Support Guidelines. Download a child support calculator by clicking here.

Inappropriate marital conduct is by far the most popular fault-based ground for divorce in Tennessee. See earlier posts for the important distinction between no-fault and fault-based divorces. Inappropriate marital conduct is the willful and persistent infliction of unnecessary suffering on a spouse. The range of marital conduct considered “inappropriate” is broad. This makes it a popular ground to allege compared to many of the other fault-based grounds for divorce.

Physical abuse is a clear example of inappropriate marital conduct. A spouse who causes unnecessary physical pain and suffering to the other spouse may also be found guilty of inappropriate marital conduct. Examples of physical abuse include browbeating and bullying, and holding a gun on the spouse. The Supreme Court of Tennessee has even recognized "abnormal sex" as a type of inappropriate marital conduct. Excessive and unwanted sexual intercourse when the spouse is in delicate health constitutes cruel and inhuman treatment. Conversely, a spouse’s refusal to engage in physical intimacy has also been considered by Tennessee courts in determining whether marital conduct was inappropriate.

Verbal abuse also can be considered inappropriate marital conduct if it is persistent and affects the spouse’s mental or physical health. Instances of verbal abuse include false allegations of sexual abuse of children, false accusations of adultery, false accusations of incest, and threatening telephone calls. The use of profanity toward the spouse has also been recognized as verbal abuse.

Other acts that Tennessee courts have deemed to constitute inappropriate marital misconduct include the failure to provide a home and clothing, notifying merchants not to extend credit to the spouse, and giving attention to persons of the opposite sex. If, for example, a husband is unable to prove adultery, but can prove that his wife traveled, dined, and slept in motel rooms with another man on a repeated basis, the husband may use inappropriate marital conduct as grounds for divorce.

Even if a court grants a divorce based on one of these types of misconduct, it may still choose to not weigh the conduct heavily when determining fault. The court’s decision will depend largely on the type of misconduct and the severity and persistence of the conduct. If the spouse who is accused of committing the conduct can raise an affirmative defense to the conduct, he or she may be absolved of fault.

Why is this Important?
Adultery is a fault-based ground for seeking a divorce and we discussed the implications of that in the blog “Consequences of an at-fault divorce in Tennessee”. So, whether you need to allege adultery against your spouse or to defend yourself against such an allegation, it is important to be aware of the defenses provided by Tennessee law.

When a spouse files for divorce in Tennessee, the opposing spouse or party is given the opportunity to raise an argument in his or her defense. These are called “affirmative defenses” because they admit that the alleged misconduct occurred. Affirmative defenses provide a valid reason that the spouse committed the misconduct. In other words, an affirmative defense is raised as a justification or excuse for marital wrongdoing. Tennessee law provides three affirmative defenses for adultery.

1. Recrimination
Let’s suppose a husband engages in an extramarital affair. The wife finds out about the affair and files for divorce. The husband should raise an affirmative defense of recrimination, if he can prove that the wife is also guilty of adultery. If recrimination is established, neither the husband nor the wife may use adultery as grounds for divorce. In this situation, one of the parties must find an alternate ground for divorce before the court will grant a divorce in the favor of either party.

2. Condonation
As an example, the wife is in an extramarital affair, but the husband is not. The husband finds out about the affair and does not file for divorce. The couple continues to live together as husband and wife and a few years later, the husband files for divorce on the grounds of adultery. In this scenario, the wife should raise the affirmative defense of condonation. This defense is only valid if the husband knew the full extent of the wife's adulterous activities and approved of the activities or forgave the wife. If the wife was conducting extramarital affairs with five other men, but the husband only knew of one, the wife could not use condonation as a defense.

3. Connivance
In this slightly more scandalous hypothetical, assume the husband engages in numerous extramarital affairs, but the wife is monogamous. The wife files for divorce, alleging adultery. However, the wife neglects to mention in the divorce complaint that she was paid for the husband’s adulterous affairs. In this case, the husband should raise the affirmative defense of connivance, which is a valid defense when the wife plays an active role in or benefits from the husband’s scandalous activities. Connivance is presumed to be an affirmative defense for both men and women.

Several of the 15 grounds for divorce, enumerated at Tennessee Code Annotated § 36-4- 101,
require allegations that, if proved, could also influence the court’s child custody determination
regarding legal decision-making and parenting time. If the child’s safety and well-being are at
risk because of a parent’s marital misconduct, then evidence of questionable parenting ability
will be examined by the court.

In awarding child custody, the court considers all relevant factors. Many of those statutory
factors in § 36-4- 101 will hinge upon the same evidence used to establish grounds for an at-fault
divorce in Tennessee.

Consider How Children of Divorce Might Be Harmed By The Same Facts & Circumstances Raised In The Following Grounds for Divorce:

Inappropriate Marital Conduct: Causing your spouse such physical or mental pain and anguish as
to render cohabitation unsafe and improper. This ground is also referred to as cruel and inhuman
treatment.

Adultery: For instance, a parent carrying on an extramarital affair in the child’s presence.

Desertion: Willfully deserting your spouse without reasonable cause for one whole year.

Abandonment: Throwing your spouse out of the marital home with no just cause, and refusing to
provide support while having the ability to so provide.

Conviction of an Infamous Crime: For instance, a parent is convicted of incest, rape, or some
other infamous crime as defined by Tennessee statute.

Conviction of a Felony: For example, a parent’s conviction and imprisonment for armed robbery.

Attempt to Kill One’s Spouse: For example, one parent’s attempt to run down the other parent with
a child in the vehicle.

Habitual Drunkenness or Abuse of Narcotics: For instance, the child observes the parent drinking
or using illegal drugs or in an intoxicated state.

Although Alimony & Child Custody May Be Impacted by Evidence of a Spouse’s Marital Fault, It has no Bearing on the Division of Marital Property in Tennessee.
When dividing marital property and debts, the court is tasked with making an equitable distribution of the same between the parties, without regard to marital fault. Of course, once marital fault is established as grounds for divorce, that knowledge is not erased from the Judge’s mind. It might have an undercurrent effect, especially if the particular marital misconduct was egregious or coupled with an attempt to hide assets from division in divorce.