Bringing up the issue of mental illness during custody negotiations is emotionally charged. It will almost surely place more strain on your relationship.

However, if you legitimately believe that a mental illness may exist, you must act in the best interest of the safety of your children & address the issue appropriately.

1. Tell your attorney about your concerns right away. Be very specific about why you think that mental illness is a factor. Keep detailed notes of any incidents, including dates and as many details as possible. For example, has your spouse threatened suicide? Does he/she admit to being depressed? Be clear about exactly how you think your spouse's illness, if it exists, could affect his or her ability to parent safely and effectively.

2. Provide your attorney with the names and contact information of any doctors that your spouse uses for medical care. It's possible that your spouse has already been diagnosed with a mental disorder -- in which case your attorney may be able to subpoena the doctor's notes or testimony if no other evidence is available.

3. Be prepared to file a request with the court for a mental health evaluation. Family courts usually have the ability to compel someone to submit to psychological testing if there's no other evidence available. While this can help you get a formal diagnosis to enter into the record, realize that this is probably not going to make your relationship with your spouse go any easier for the time being.

4. Be prepared to undergo psychological testing yourself. False allegations of mental illness are a common weapon in family court, so the judge may also want to get an expert's take on your mental stability. -- Just in case.

5. Be open to compromise. Mental illness or not, your spouse is still your children's other parent. Unless you believe that any contact is potentially dangerous, be open to solutions like supervised visitation, or visitation that's contingent on your spouse getting treatment for his/her condition.

For A Free Consultation Contact: Ryan K McFarland • attorneymcfarland@gmail.com •1 (931) 919-4376

There is a lot of advice out there about what to do and not do during a custody battle. Please believe us when we say that very high on the list of things not to do is "State Skipping With Your Child" while the custody battle is waging on.

Not only will that likely cost you the custody that you so desperately want, but it could land you in jail and make you a convicted felon. Of course, this won't help you win any custody battles later, either.

A Pennsylvania woman recently relocated to Tennessee, her 6-year-old child in tow, without telling the child's father where they were going. The father made the discovery upon going to the mother’s former home to pick the child up for his scheduled visitation. The mother failed to make the proper notification to the father of the intended move, and a warrant was issued for her arrest. When she returned to Pennsylvania for a custody hearing, she was taken into custody by police.

Perhaps a few decades ago that would have worked, and the father wouldn't have been able to find them without a lengthy and expensive search. In the current digital age, however, it's a lot harder to just skip states and start over without leaving a trace. Most parents lack the financial means and know-how to acquire a new identity or live entirely off-the-grid with their children. Not to mention that this is rarely, if ever, in the best interest of your children.

The reality is that many parents don't realize that they're doing anything wrong. In their minds, they are not kidnapping. They think that it's impossible to kidnap their own child. They feel entitled to make unilateral decisions about where the child should live, regardless of what the other parent may think or feel. They don't even bother to hide because they believe their actions are legal.

That's why it's incredibly important to discuss limitations and ground rules with your attorney during any custody battle or dispute. Your attorney may not realize that you don't understand something is illegal or at harmful to your case. It's better to ask if something you are thinking about doing is okay.

Requests for temporary custody orders are filed in cases of divorce, legal separation, annulment, and actions for separate maintenance. A temporary custody order will be replaced with a permanent order when the divorce or other case is final. Obtaining temporary custody orders is up to the discretion of the court.

Emergency Temporary Custody:
In many custody proceedings, whether it is through divorce, modification of custody or simply establishing initial custody and parentage, there are emergency circumstances where a parent can — and should— ask the court to grant him or her emergency temporary custody over the minor child.

In Order To Have Grounds To Ask For Emergency Temporary Custody, A Parent Must Be Able To Prove That There Are Serious Circumstances That Warrant An Emergency Change.
This can include showing the child in question could potentially be removed from the jurisdiction of the court (usually the other parent threatening to take the child out of the state and never returning), or there is fear that potential danger or imminent harm will occur if the child continues to stay in the other parent’s care (such as the mother or father recently obtaining a DUI with the child in the car and a history of drinking heavily around the child).

An emergency petition for a temporary child custody order may be made ex parte. (Ex parte means no notice of the petition or hearing is given to the other parent.) Consequently, the other parent is prevented from participating, arguing, or presenting evidence. It’s because the other parent is left out that the court must review its temporary emergency custody order within 15 days. The review hearing is the other parent’s opportunity to present his or her side of story to the judge. After evidence and testimony is provided by both parents at the hearing, the judge will either continue the order, modify the order, or terminate the order.

An accident that puts the custodial parent in the hospital for an extended period, for example, is reason for the non-custodial parent to request a temporary custody order. The court can order temporary child custody whenever an emergency situation arises even after the divorce is final.

Non-Emergency Temporary Custody:
This could arise when one parent wants the status quo maintained (or stopped) with a temporary court order until a final order is entered. It’s possible that both parents want a temporary order. They may even agree on a temporary parenting plan.

In many cases where the parents are communicating, they want a plan in place so they both know what they’re doing with regard to legal decision-making and childcare. When parents agree, it’s possible that only one will file a proposed temporary parenting plan, which the court may adopt by default. Before the divorce, either parent may file a petition asking the judge to order a temporary parenting plan. What happens next will depend upon the circumstances.

The judge may prefer to not rule on the petition, preferring instead to wait until the trial and issue permanent orders then, especially when parents don’t have a genuine, heated dispute. This is because any hearing on temporary custody is likely to take just as long as a full-blown custody trial. In other words, one custody battle in the case is sufficient for many trial judges. Judges resist inviting another battle over the temporary custody question. If the parents cannot agree on a temporary custody plan,if the judge opts to rule on the petition for a temporary custody order, then the parents will likely be ordered into mediation, just as they would if they were not in agreement on a permanent parenting plan. If mediation doesn’t resolve their differences, then a hearing will be held. Both parties present their cases at the hearing, along with evidence, just as they would in a custody trial.

Child support is neither taxable income to the recipient nor a taxable deduction for the paying party. However, alimony or maintenance is an income tax deduction for the paying party and considered taxable income for the receiving party.

Whenalimony is a part of the divorce decree or settlement agreement, care must be taken to properly draft the papers and make sure that payments are qualified for a tax deduction by the IRS. You do not want to pay your ex-spouse alimony for a year only to have the IRS disallow the tax deduction.

IRS Publication 504 specifies the requirements for alimony to be allowed as a deduction. First, the payments must be specified as alimony in the decree or property settlement agreement. Though payments can be made to a third party, the ex must consent in writing. Since the payment must be in cash, trading off property for alimony is not sufficient. The decree must also provide that alimony will cease upon the death of the recipient.

At times, the IRS will look to the documents and determine that payments are actually child support rather than alimony. Generally, this issue arises if the payment is tied to any event related to a child. If payments are reduced or eliminated when the child reaches a certain age, leaves the home or becomes employed, the IRS may deem payments to be child support and disqualify the deduction.

In Tennessee, an inheritance is considered to be separate property whether you received it before or during the marriage. What can change an inheritance from separate to marital property is what you do with the money during the marriage.

ONE EXAMPLE OF HOW THINGS CAN GO WRONG:

You received an inheritance which you deposited into a savings account that is owned by you and your spouse. Your intention was to save that money and use it to buy a home one day. Years go by and each of you contributes to that savings account, but you never end up buying that home. Since you deposited the inheritance check into an account owned by both of you, and both added additional money to that balance over the years, the inheritance has now become co-mingled with marital assets, so it can no longer be considered to be separate property. It is subject to division by the court.

A BETTER SCENARIO:

You pick up your inheritance check from an attorney’s office. After work, you go directly to the bank and open a new savings account in your name only where you deposit the check. Years pass and the balance grows, but you are the only one who has access to that account, you are the only one who deposits money into the account and those funds are never commingled with any of your other joint accounts, so it remains separate property. It is safe from division during a divorce.

Life is full of the unexpected. If you are contemplating divorce, or even if divorce is the furthest thing from your mind, our office can advise you on the best measures to take to protect your inheritance.

More and more parents are turning to “Virtual Visitation” as a way to come to a child custody agreement. Parents must understand that this is not in lieu of traditional visitation, merely a supplement, and is always subject to approval by the court.

“Virtual Visitation” is becoming increasingly popular across the country and in Tennessee because of its convenience. Again, it's not meant to get rid of traditional visitation, only supplement it. "Virtual Visitation" involves phone calls, video chats, texting, emailing and chatting on other apps.

If parents want to utilize “Virtual Visitation”, they will need to agree that this is a valid method to supplement the rest of the schedule. Parents must also make their children readily available for virtual chats with the other parent. There can be no censorship by either parent when this is part of the visitation schedule. Also, parents should take this form of visitation as seriously as traditional visitation and be punctual and reliable.

“Virtual Visitation” is a great way for parents who work night shifts, travel a lot for work, are in school or who don't live near their children to spend time with them as often as possible. It's great to help the parents bond with their children even though they cannot spend time with them in person.

These are just a few examples of how parents are using this form of visitation, or “seeing” a child after school to discuss their day via video chat or reading them a nightly bedtime story.

When it comes to maximizing time with your children, our office will assist you in creating a schedule with methods that you may not have considered. We believe that any time spent with your child is priceless.

Tennessee law allows adult adoption. This often occurs in a situation such as “My aunt and uncle raised me and I want to legally recognize them as my legal parents.” or something similar. The main issues to understand regarding an adult adoption are:

• If two people are adopting an adult, they must be married to one another. A married person cannot adopt without their spouses consent.
  
  
• The only way to retain one birth parent’s parental rights in an adult adoption is for a step-parent adoption to occur. Otherwise, both birth parents’ parental rights are terminated.
  
  
• The birth parents do NOT have to consent to the adoption but they must be given notice of the action, unless they are deceased. The law states, “When petitioner seeks to adopt a person who is eighteen years of age or older, only the sworn, written consent of the person sought to be adopted shall be required and no order of reference or any home studies need be issued." Tennessee Code Annotated §36-1-117(j)(1). Also, if the adult adoptee was previously adjudicated incompetent, "the written consent of the adult person's guardian or conservator of the person shall be required." Tenn. Code Ann. § 36-1-117(j)(2)(a).
  
  
• When adopting an adult over 21, that person needs to be specifically named in wills or estate planning documents of the adoptive parents. The word “child” or “heirs” or the like, will not cover that adopted person if they were 21 or older at the time of the adoption.
  

Tennessee prenuptial agreements document a couple’s wishes before marriage to protect them in the event of a divorce. The Prenuptial Agreement can address property ownership, property division, alimony, and many other legal issues that would need to be dealt with in the unfortunate circumstance of a divorce. A properly drafted, negotiated, and executed agreement may be very difficult to set aside. To set aside a Prenuptial Agreement, there must be proof that the process was flawed, such as the existence of duress, coercion, or a failure to disclose or properly value assets.

Today, Prenuptial Agreements are very popular between individuals who have been married before or those with meaningful estates. The main advantage is knowing ahead of time what will happen if the marriage ends. Some provisions however, such as those relating to custody and child support, will not be enforceable, even if a Prenuptial Agreement lists the parties’ desired outcome. Courts always have the authority to look after the best interest of children.

You Should Be Aware: however, that many Prenuptial Agreements that have been prepared and executed from purchased forms on the Internet can be successfully challenged because most forms do not address what needs to be covered or what can be covered. Plus, how they were agreed upon can be more important than what was agreed upon.

A Prenuptial Agreement Can Be Attacked As Follows:

• Did the less-propertied spouse receive independent legal advice?
• Was there full disclosure of assets and their values?
• Beyond these first two questions, inquires will turn to the process itself, seeking to determine if the process was “fair.” While each case is different, a few questions are most common. When was the Prenuptial Agreement presented to the less-propertied spouse? Two months before the wedding or twenty minutes before the wedding? How financially savvy is the less-propertied spouse? High school graduate or CPA? Were the assets valued? When? By whom? Were the valuations significantly understated? Who prepared the document? How one-sided was the deal at the time it was signed? How one-sided was the deal at the time of the divorce? How is the less-propertied spouse going to live after the divorce?

Prenuptial Agreements can be redone after the marriage if the circumstances change or the parties change their minds about a particular provision. There can even be a “sunset provision,” dictating that the agreement expire after a certain period of time. In any event, the Prenuptial Agreement should spell out the procedure to be followed if both spouses want to make a change. If these circumstances apply to your situation, definitely get expert legal help. Neither spouse should try to make these types of changes on his or her own.

The Tennessee Court of Appeals recently reversed a decision of the trial court of Williamson County that held a child could not change his/her name to that of the opposite gender.

The sixteen-year-old child was born female but identifies as male. The child is transgender and undergoing a medical transition via hormone therapy from the female gender to the male gender. The child was diagnosed with Gender Dysphoria, a medical diagnosis that refers to the emotional distress of having a gender identity that is different than the gender assigned at birth. Treatment for Gender Dysphoria includes addressing psychological distress through social transition and medical treatment for the body. Part of the social transition may be changing one’s name to reflect the person’s experienced gender.

The child’s continued use of a feminine name caused anxiety and embarrassment. The child was known socially as “Charlie” and wanted that to be his legal name.

The parents petitioned to change the child’s first and middle names. The petition provided all the information required by law.

Three days later, the trial court denied the petition without a hearing, citing the lack of a “valid reason” for thename change and the parents filed a motion to alter or amend.

On appeal, The Court of Appealsreversed the trial court. The Court stated that all persons have the right to change their name at will, as long as the change does not interfere with another’s rights and is not being made for fraudulent purposes. Absent any fraudulent or legally impermissible intent, the State has no legitimate concern in a petition tochange a person’s name.

Tennessee’s statutory name-change procedures are found atTennessee Code Annotated§§ 29-8-101 to -105. The procedures are applicable to both minors and adults.

To change one’s name, one must file a petition giving the reasons for desiring the name change or correction. The only restrictions on changing one’s name are found in Tennessee Code Annotated§ 29-8-101, which restrictions are based on certain criminal offenses (sexual offenses) and where the court finds the petition is being made to defraud or mislead. The determinative factor in apetition to change the name of a minor childis whether the change is in the child’s best interest. Three witnesses testified in court, and all of them stated unequivocally that the requested name change was in the child’s best interest. Additionally, statements and letters from three professionals were admitted into evidence, and all of them stated unequivocally that the requested name change was in the child’s best interest. No evidence was introduced indicating any basis for concluding that the requested name change was not in the child’s best interest.

This case is also noteworthy because, according to the Court, “There appear to be no cases in Tennessee that addressed the change of a child’s first or middle name.” All the caselaw until now concerned changing a child’s last name.

It happens all too often. A parent is ordered to pay child support but you believe that they are not making an effort to find a job because they want to avoid paying that child support. What can you do when the alternate residential parent is not paying child support because they do not have a job?

Under Tennessee law, both parentshave a responsibility to contribute to raising the child. In situations where the child lives with one parent, that parent bears all of the financial burden of raising that child when the child’s other parent refuses to contribute. The state of Tennessee’s child support guidelines allow for imputing (assigning) income for non-residential parents who seem to be underemployed or unemployed in an effort to dodge their obligation to pay a portion of their income for child support.

If a parent seems to be voluntarily or willfully underemployed or unemployed the court needs to see evidence that the parent is capable, that they have the educational and employment background to earn more income than they are earning. For example, if a parent with a Bachelor’s degree and 15 years of work experience at a professional level loses their job and does not exert sufficient effort towards finding a new job, but instead takes a “menial” job, the court might impute income to that parent if it is clear that their underemployment it purposeful. However, if a parent has been unable to find a new job, or has taken a part-time job in order to care for a sick relative, or for some reasonable purpose the court may not impute income for that parent.

If you can prove that your co-parent’s underemployment or unemployment is purposeful and willful the court may impute a minimum income to that parent for child support purposes according to the Tennessee child support guidelines. Our office can guide you in gathering the information necessary to present to the court to collect the child support to which you are entitled.