A Diligent Child Custody and Child Support Lawyer
Many family laws remain relatively static. For example, Tennessee has been an equitable division state, as opposed to a community property state, since early times. But the American family has changed significantly since the 1970s, so Tennessee family laws have changed significantly as well.
Tennessee lawmakers passed a joint custody law in the 1970s. The J-word referred to legal custody and not physical custody. For the most part, children of divorce lived with one parent and visited the other one. To keep up with the changing nature of Tennessee families, lawmakers recently replaced the joint custody law with a co-parenting law. This law presumes that children benefit from frequent and consistent contact with both parents.
Even though the legal environment has changed, at Stratton Family Law, our approach to these cases remains much the same. We quickly analyze your situation and inform you of all your legal options, including the pros and cons of each one. Once we decide on a course of action together, we diligently collect evidence that supports your positions on key points. We apply this same diligence in both court hearings and settlement negotiations.
Child Custody Determinations
All Tennessee child custody determinations must be in the best interests of the children. Most parents agree with this general principle. But they often disagree on specific points.
For example, there is a difference between the best interests of the children and the preferences of the children. There’s also a difference between the best interests of the children and the best interests of the parents.
To assist judges in making this determination, in temporary divorce hearings, final hearings, and modification matters, Tennessee law sets forth a number of factors to consider. Some of the major ones include:
- Prior Division of Labor: Many marriages still feature a “breadwinner” spouse and a “caregiver” spouse. If one parent handled most child-rearing responsibilities during the marriage, that parent has the inside track for residential parent status. The caregiver spouse is not always financially qualified to take care of children. So, this is one area where alimony comes into play.
- Ability to Co-Parent: Some spouses hire over-aggressive “bulldog” lawyers who contest every inch of legal ground. This strategy often backfires. If a parent is intransigent during court proceedings, many judges rightly assume that this intransigence will be worse once court supervision ends. Difficult parents who refuse to compromise typically do not make good co-parents.
- Parental Fitness: Some people have physical, mental, or other limitations which restrict their parenting abilities. These limitations could affect the parenting time division. That’s especially true if the limitation is voluntary to some extent, like a substance abuse problem, and the parent refuses to get help.
- Prior Domestic Abuse: These two bullet points, especially if alcohol or another substance is involved, often go together. If there is credible evidence of physical, emotional, verbal, or other violence during the marriage, that abuse could be a custody dealbreaker. That’s especially true if a child witnessed the conduct or was a victim of it.
- Family Relationships: Not all blended families mesh together like The Brady Bunch. Children do not always get along with step-siblings and/or step-parents. In some states, this factor is minimal, except in extreme circumstances. But in Tennessee, these family dynamics are usually relevant.
Attorneys must be mindful of these factors in court proceedings and during settlement negotiations. Arguments which stick close to the factors usually resonate well with most judges. Moreover, if a settlement agreement does not account for the major child custody factors, a judge might not approve it.
The aforementioned factors almost always change over time. For example, step-families are usually not a factor in original determinations. But most people remarry following divorce. Parental fitness limitations come and go as well. If Mother had an alcohol abuse problem at the time of divorce, the judge would most likely limit her visitation rights. Once she overcomes that addiction, those restrictions must be reconsidered. The overall parenting time division might need to be reconsidered as well.
In general, a modification is appropriate if the family’s circumstances have materially and substantially changed. The moving party has the burden of proof. Usually, that burden is a preponderance of the evidence (more likely than not). That’s the lowest burden of proof in Tennessee law.
In most counties, the current orders must have been in effect for at least a year before the judge will entertain a motion to modify. If the child’s physical health or emotional well-being is at stake, a parent can file an emergency motion to modify. Examples of such emergencies include a new abuse allegation or clear evidence of Parental Alienation Syndrome.
Child Support Determinations
Tennessee laws have changed significantly, and recently, in this area as well. Prior to 2005, Tennessee was a percentage-of-income state. The child support guidelines, which are presumptively reasonable, only considered the obligor’s income and the number of children before the court.
Tennessee is now an income share state. According to this new law, the child support obligation should elevate the child’s standard of living. As a result, a number of other factors, such as the obligee’s income and the parenting time division, come into play. As a result, either the residential or nonresidential parent could be ordered to pay support.
Because the guidelines are broader, it is more difficult to deviate from them. Nevertheless, deviation is appropriate if the guideline amount would be unjust under the circumstances. To recalculate support, the judge looks at a number of factors, such as:
- Extraordinary educational expenses for special needs children,
- Extracurricular activity and other expenses which exceed 7 percent of the monthly child support obligation,
- Visitation-related travel expenses, and
- Families that feature a very high or very low income earner.
Once again, the best interests of the child are paramount. So, any deviation arguments must focus on this principle.
The same modification principles discussed above usually apply in child support modification matters. Additionally, the substantial change must have been made in good faith, especially if the change involves an income decrease. Parents cannot quit their jobs in order to reduce their child support obligations.
Emotional changes might also necessitate a child support modification. As a rule of thumb, if the proportion of overnight visits changes by more than 10 percent, that’s usually a meaningful change. Changing family dynamics often affect the number of overnight visits.
Most judges approve agreed child support modification motions without requiring hearings. Therefore, pre-filing mediation is often a good idea. The extra time at the front end often saves time, as well as legal fees, on the back end.
Child support and child custody matters must be in the best interests of the children. For a free consultation with an experienced Franklin family law attorney, contact Stratton Law. We routinely handle matters in Williamson County and nearby jurisdictions.