No one expects any parent to have a spotless home. However, a court in Davidson County modified child custody to make the father the new primary residential parent and to put restrictions on the mother’s visitation partly because of the condition of her home. The court ruled that it was an unfit environment to raise a child.

As with all child custody modification cases, the details are important. In this instance, the mother produced several witnesses who admitted that the home was messy, but that it did not interfere with the well being of the child. The court was inclined to agree with the Court Appointed Special Advocate (CASA) volunteer who visited the home and reported she did not believe that mother's house was an appropriate environment to raise a child. She explained that the home had three bedrooms but only the living room was actually used. The other rooms were "stuffed" with mother's belongings, and trash was scattered throughout the home. Additionally, at least one bedroom and the basement were completely inaccessible. According to the CASA volunteer, the living room contained one bed in which both mother and the child slept, and occasionally did school work. She testified that she recommended homemaker services to mother and offered to help mother get her home in order, but mother refused assistance. These problems were made worse by the fact that the mother home-schooled the child, and thus the majority of their time was spent in the living room of the home which contained one bed for shared use.

The court ruled that the mother would not have overnight visitation until the home was made fit for the child.

Along with the requirements for adoptions found here (insert link), there are a few categories of people who are not allowed to adopt in Tennessee. This is designed with the best interest of the child in mind.

Who May Not Adopt?

• One person of a married couple can not adopt without the other spouse adopting as well.
• Two unmarried people can not adopt the same child. (Example: Adult raised by foster mother would like for the foster mother and a biological uncle to be her legal parents. Unless the foster mother and uncle are married to one another, this is not possible.
• Sometimes a single parent, usually a mother, will want one of her relatives to adopt the child, terminating the birth father’s rights, but without terminating her own rights. While this may sometimes be in the best interest of the child, the requirement that both parents’ rights be terminated before adoption only excepts step parent adoptions, and therefore the desired adoption is not allowed.
• A non-related person without a home study.
• Dead people (Sometimes a grandmother, for example, will adopt and want her deceased husband included in the action. This is not allowed.)

Who Is A “Relative?”
Some of these limitations bring us to the question of who is a “relative?” Tennessee law tells us that “related” means grandparents or any degree of great-grandparents, aunts or uncles, or any degree of great-aunts or great-uncles, or stepparent, or cousins of the first degree or any siblings of the whole or half-degree or any spouse of the above listed relatives. If you are unsure whether you fall into this category, our office is happy to look at your family tree and let you know (it can get confusing)!

If you are thinking of adding to your family through adoption of a child in the care of Tennessee Child Services, it is important to note that around 80 percent of children adopted from foster care are adopted by their current foster parents. In fact, the Department of Children’s Services gives adoption preference to families who are already caring for a child who becomes eligible for adoption and can be released from DCS custody.

Since these children may be vulnerable and definitely need a loving, stable environment, DCS imposes some preliminary requirements. Foster parents in Tennessee are automatically approved to adopt children, as the requirements for the fostering and adopting are the same. This makes it easier for foster parents to adopt the children they are caring for in a seamless transition.

The Requirements for Foster-Adoptive Parents in Tennessee Are:

• Can Own or Rent a Home
• Can Work Full Time
• At Least 21 Years Old
• Valid Tennessee Resident
• Capable of Meeting Family’s Financial & Emotional Needs

Foster-adoptive parents can be married, single, or divorced, and there are no requirements or restrictions based on whether they already have children.

After verifying that you meet these requirements, you can move toward adopting a child who is in the custody or guardianship of DCS by completing a formal home study conducted by DCS.

Independent adoptions (commonly referred to as private adoptions) most often occur when a birth mother is pregnant and determines she is not able to raise the child. She may identify a friend or family member that is willing to adopt. Many birth mothers feel strongly that they do not want the child to be placed in foster care, and would rather choose a family they know will love and care for the child.This process has many details that must be taken into consideration and should definitely be guided by a knowledgeable attorney.

Tennessee has a mandatory waiting period of three days after the baby is born before a Court can accept the surrender of the child. For example, if the child is born on a Monday, the first possible day for a surrender would be Friday. As a practical matter, it often takes longer based on the schedule of the Court, attorneys, and parties involved, as well as the large amount of paperwork that must be completed.

The hearing for surrender occurs in the Judge’s chambers. The birth parent and his or her attorney meet privately with the Judge to ensure that the birth parent understands the rights that she is relinquishing and that she is making the decision of her own free will. Then the adoptive parents and their attorney meet privately with the Judge to accept the surrender.

Once the surrender of parental rights is executed, your attorney will ask the Court to grant the prospective adoptive parents guardianship or partial guardianship of the child. Guardianship allows the prospective adoptive parents to access medical records and make medical decisions, apply for health insurance and other benefits, and care for the child.

In 2015, the time period for a birth parent to revoke the surrender of parental rights decreased from ten days to three days after the surrender. The three-day period does not include weekends and holidays. No reason is required for the revocation, and the child must be returned to the person entitled to custody prior to the surrender. This possibility should be kept in mind if you enter into this adoptive process.

It is important to note that Tennessee has strict laws concerning payments to birth mothers. Payments must be limited to actual expenses and only for a limited period before and directly after the birth. Payments should only be issued through your attorney’s trust account to ensure that there is a record of all payments and that your attorney has approved the legality of the expenditure. There are criminal penalties for payments to a birth parent that are outside the parameters of the law.

Find More Information Here

In Tennessee divorce property division is accomplished through the Court making an “Equitable Distribution” of the married couples’ property, however, the Court must first identify, categorize, and value it, before it can be divided. Tennessee law therefore mandates full and fair disclosure of all marital property in a divorce. Should one spouse not make the appropriate disclosures, they can be brought back into Court to face allegations of perjury and contempt of court.

▪ Marital Property
The Court will categorize property as either separate or marital, and value that asset if marital in nature. Marital property includes all real and personal property, both tangible and intangible acquired by either spouse during the marriage up to the date of divorce. The Court is able to divide marital property, but lacks the ability to divide separate property.

▪ Separate Property
Separate property is owned by one spouse prior to the marriage. Although some items of property can be acquired during the marriage and still be one spouse’s separate property. These include: inheritance; gifts; pain and suffering awards; awards for future medical expenses and future lost wages; victim of crime compensation awards; disability insurance payments that replace future lost wages; social security benefits; and income from and appreciation in the value of separate property that accrues during the marriage.

▪ Doctrine of Transmutation
Under the doctrine of transmutation, separate property can become marital property subject to division, where each spouse made a substantial contribution to the “preservation and appreciation” of one spouse’s separate property, then the resulting income and/or increased value is marital property and subject to division.

▪ Commingling
When property becomes commingled, separate property can become marital property if it becomes so intertwined that it is impossible to separate. If the separate portion cannot be traced then the entire asset is presumed to be marital property For example, money from a marital account is occasionally used in one spouse’s separate investment account without a record of the transactions. If the funds become so commingled that they are impossible to separate, the entire account will become marital property.

Find More Information Here

A case from Hamilton County reminds us that Tennessee Courts put a high emphasis on your commitment to your child’s education. In this instance, a mother lost parenting time to the father because she emphasized a sport over the education of her children.

The parents were divorced in 2012. They were both named co-primary residential parents of their children, who were 11 and 7 years old at the time of trial. Each parent received equal visitation time. The parenting arrangements proved contentious, and the mother went back to court asking to be named the exclusive primary residential parent. The father made the same request, and the matter was set for a court hearing. After hearing, the trial court granted the father’s request.

At the time of the original divorce, both parents lived in North Chattanooga. The father remarried, had another daughter, and moved to Signal Mountain. The mother was living with a close friend, who was also the children’s pediatrician.

The mother was an avid rock climber who also coached rock climbing. The main issue at trial was whether the mother had neglected the children’s educational needs in favor of rock climbing.

The mother testified that rock climbing was a key part of the children’s lives. The father, on the other hand, believed that the rock climbing was being done to the exclusion of all other activities.

The trial court found that the mother “seems obsessed with rock climbing,” and noted that the children normally participated in rock climbing before beginning their homework, which sometimes was not completed. It noted that the mother did not seem overly concerned with the children’s education.

After the father was named primary residential parent, the mother appealed to the Tennessee Court of Appeals, which first agreed that there had been a material change of circumstances. It then turned to the issue of whether the trial court had acted in the best interests of the children. It found that the most relevant factor in this case was the disposition of each parent to provide the child with food, clothing, medical care, education, and other necessary care.
The appeals court then reviewed the evidence and concluded that the evidence did not preponderate against the trial court’s findings. The lower court had credited the father’s testimony that the mother had an excessive interest on rock climbing at the expense of other activities, including education.

This certainly does not mean that your children shouldn’t participate in sports. Rather, it reminds us that the courts expect a healthy balance between education and extracurricular activities. As in this case, if education is neglected you may be in danger of losing parenting time.

Adoption records in Tennessee are private and not open to the general public. Adoption records are, however, available to eligible persons.

Persons Eligible to Receive Adoption Records:

• Adult individuals, age 21 or older, surrendered for the purpose of adoption.
  
• An adopted individual’s birth, adoptive, step- or legal parent older than 21-years of age.
  
• An adopted individual’s birth or adoptive siblings, age 21 and older.
  
• An adopted individual’s lineal descendants or lineal ancestors, age 21 and older.
  

Note: The adopted person must consent to the release of any identifying information contained in the sealed record.


Individuals Who Cannot Receive Access to Adoption Records Include:

• A parent or pre-adoptive guardian whose rights were involuntarily terminated for cause.
• A sibling, lineal ancestor, spouse or attorney of the person whose rights were involuntarily terminated for cause.
  
• A person guilty of a crime of violence or neglect against the adopted person.
  
• Alleged parent or relatives.
  

Eligible persons may download a request form and instructions from TN Department of Children's Services.
There is a $150 fee for this service.

In the majority of cases under Tennessee custody law, spending most of a day and overnight with a parent will count as “a day”. For child support purposes, though, calculating the number of parenting days for the Alternative Residential Parent (ARP), simply the parent with less parenting time, can sometimes be quite complicated.

A Day of Parenting Time Occurs When:
A child spends more than 12 consecutive hours in a 24-hour period under the care, control, or direct supervision of one parent or caretaker. The 24-hour period need not be the same as a 24-hour calendar day. Accordingly, a day of parenting time may be either an overnight period or a daytime period, or a combination of daytime and nighttime hours.

There Are Exceptions:
An example could include a parenting situation where the ARP is scheduled to pick up the child after school three or more days a week and keep the child until 8 p.m. The three partial days could be considered a single day for parenting time purposes. As with many aspects of Tennessee child support, the final answer may be negotiated between the parents as part of a compromise or be determined by a judge on a case-by-case basis.

1. Share with your lawyer every important fact and piece of evidence, good and bad, applicable to the factors.
   
   
2. If you have been the primary caregiver for the children.
   
   
3. If the children are happy, are healthy, are well-adjusted, and have good grades, and you were their primary caregiver.
   
   
4. If the other parent has engaged in inappropriate activity, consider hiring a private investigator.
   
   
5. If you have concerns over the other parent’s mental health, consider asking the court to appoint a forensic psychologist to perform an independent child custody evaluation or court-ordered mental evaluation.
   
   
6. There Is No Such Thing As “Winning” A Custody Battle:
   Keep your children out of disputes. Even if you are honest and heartfelt in discussing your divorce with your children, the judge will likely hold this against you.
   
   
7. Don’t Date:
   Focus your efforts on demonstrating to the court that your children are your first priority.
   

Read and study the factors for Tennessee custody found in Tennessee Code Annotated 36-6-106.