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Family Law

Family Law

Strong families are the bedrock of the American Dream.  However, current circumstances are causing more and more families to experience unique transitions requiring the compassion and experience of an experienced Tennessee family law attorney to protect the rights of parents and relatives along with the best interests of affected children.  Parental drug abuse, crime, and poverty have lead to thousands of children needing the stability of a trusted loved one until their parents can get back on their feet.

Aaron J. Chapman has successfully helped hundreds of individuals and families navigate some of life’s toughest challenges including legal separation, divorce, child custody, child support, child abuse and neglect, adoption, division of retirement benefits, and modification of alimony.  See below for more detailed information on the services Aaron regularly provides throughout East Tennessee:

Legal Separation

Though it is becoming increasingly rare, legal separation is often considered when a marital relationship is being legally concluded in Tennessee.

Tenn. Code Ann. § 36-1-102 states, “Legal separation shall not affect the bonds of matrimony but shall permit the parties to cease matrimonial cohabitation. The court may provide for matters such as child custody, visitation, support and property issues during legal separation upon motion by either party or by agreement of the parties.”

Some individuals and couples find that it is in their best interest to consider legal separation as an alternative to divorce.  It is important to discuss this option with an experienced East Tennessee Divorce Attorney, however, as the determinations that the Court makes in a Legal Separation proceeding can have permanent consequences.  Call (423) 254-5333 to learn more about the process and to help determine if this option is right for you.

Agreed Divorce

As the title indicates, a Tennessee agreed divorce indicates that the spouses agree on all matters at issue, including grounds, property division, debt division, spousal support, and, if the spouses have minor children, residential parenting time schedules and child support (subject to Tennessee Child Support Guidelines).

The process to obtain an agreed divorce in Tennessee is outlined in Tenn. Code Ann. § 36-4-103, which states that “No divorce shall be granted on the ground of irreconcilable differences unless the court affirmatively finds in its decree that the parties have made adequate and sufficient provision by written agreement for the custody and maintenance of any children of that marriage and for the equitable settlement of any property rights between the parties.”  These issues are typically dealt with through a properly-executed Marital Dissolution Agreement, and where applicable, an Agreed Permanent Parenting Plan.  Additionally, a 60-day waiting period is required if there are no children and a 90-day waiting period is required if there are minor children involved.  These requirements cannot be waived.

There are many providers soliciting Tennessee residents online claiming to offer “guaranteed divorce forms,” and there are also some publicly-available forms that are often inappropriate to use, given the circumstances of the spouses.  Users of these forms routinely have difficulties in getting their cases finalized.

You should instead discuss your agreed divorce with an experienced Tennessee divorce attorney if you want your rights preserved and protected in the most efficient manner.  This firm handles divorce cases throughout East Tennessee and can often begin work on agreed divorce cases over the telephone.  Agreed matters generally only require initial payment of a modest flat fee.

To best protect your rights and your best interests, call Aaron Chapman now at (423) 254-5333 or toll-free at (888) 931-0731.

Contested Divorce

A Tennessee divorce action can be a harrowing experience for anyone involved.  Many people think that divorce is easy because so many people file for or are sued for divorce.  However, it is this sheer volume of divorces that creates a complex body of statutory law, case law, and procedural rules that can trap the unwary litigant.

There are many matters to be resolved in a typical Tennessee divorce action.

Tenn. Code Ann. § 36-4-101 currently lists grounds for divorce as follows:

  • Either party, at the time of the contract, was and still is naturally impotent and incapable of procreation;
  • Either party has knowingly entered into a second marriage, in violation of a previous marriage, still subsisting;
  • Either party has committed adultery;
  • Willful or malicious desertion or absence of either party, without a reasonable cause, for one (1) whole year;
  • Being convicted of any crime that, by the laws of the state, renders the party infamous;
  • Being convicted of a crime that, by the laws of the state, is declared to be a felony, and sentenced to confinement in the penitentiary;
  • Either party has attempted the life of the other, by poison or any other means showing malice;
  • Refusal, on the part of a spouse, to remove with that person’s spouse to this state, without a reasonable cause, and being willfully absent from the spouse residing in Tennessee for two (2) years;
  • The woman was pregnant at the time of the marriage, by another person, without the knowledge of the husband;
  • Habitual drunkenness or abuse of narcotic drugs of either party, when the spouse has contracted either such habit after marriage;
  • The husband or wife is guilty of such cruel and inhuman treatment or conduct towards the spouse as renders cohabitation unsafe and improper, which may also be referred to in pleadings as inappropriate marital conduct;
  • The husband or wife has offered such indignities to the spouse’s person as to render the spouse’s position intolerable, and thereby forced the spouse to withdraw;
  • The husband or wife has abandoned the spouse or turned the spouse out of doors for no just cause, and has refused or neglected to provide for the spouse while having the ability to so provide;
  • Irreconcilable differences between the parties; and
  • For a continuous period of two (2) or more years, both parties have lived in separate residences, have not cohabited as man and wife during such period, and there are no minor children of the parties.

Grounds must be proven in a contested divorce proceeding.  This means time and effort must be put into the pre-trial phase of the case to determine the best and most efficient approach to take to convince the Court that the Petitioner is entitled to a divorce.

You should discuss these matters with an experienced Tennessee divorce attorney if you want your rights preserved and protected.  An East Tennessee divorce attorney will review your case scenarios with you and discuss your options.  This firm handles divorce cases throughout East Tennessee.

To best protect your rights and your best interests, call Aaron Chapman now at (423) 254-5333.

Division of Marital Assets/Debt

When you are going through a divorce, financial aspects are one of many things on your mind.  However, and whenever possible, you shouldn’t let the emotional toll of divorce become any more of a financial burden than it already is.

The question of whether there is “marital property” and what is marital property comes up in every Tennessee divorce.  Nothing is automatically deemed to be marital property or separate property.  The same goes with marital debt.

In the most general sense, Tenn. Code Ann. § 36-4-121 defines Marital Property as “all real and personal property, both tangible and intangible, acquired by either or both spouses during the course of the marriage up to the date of the final divorce hearing and owned by either or both spouses as of the date of filing of a complaint for divorce, except in the case of fraudulent conveyance in anticipation of filing, and including any property to which a right was acquired up to the date of the final divorce hearing, and valued as of a date as near as reasonably possible to the final divorce hearing date.”

Likewise, Separate Property is generally defined by Tenn. Code Ann. § 36-4-121(b)(2) as:

  1. All real and personal property owned by a spouse before marriage, including, but not limited to, assets held in individual retirement accounts (IRAs) as that term is defined in the Internal Revenue Code of 1986, compiled in 26 U.S.C., as amended;
  2. Property acquired in exchange for property acquired before the marriage;
  3. Income from and appreciation of property owned by a spouse before marriage except when characterized as marital property under subdivision (b)(1);
  4. Property acquired by a spouse at any time by gift, bequest, devise or descent;
  5. Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
  6. Property acquired by a spouse after an order of legal separation where the court has made a final disposition of property.

Further, the existence of marital property and debt does not automatically add any value or benefit to one side’s case or the other, as liquidity and time concerns may affect the parties’ best interests.

The proper division of marital assets and debts isessential to the successful resolution of any Tennessee divorce.  To this end, Tenn. Code Ann. § 36-4-121(c) mandates that the divorce courts consider the following factors in making such a division:

  1. The duration of the marriage;
  2. The age, physical and mental health, vocational skills, employability, earning capacity, estate, financial liabilities and financial needs of each of the parties;
  3. The tangible or intangible contribution by one (1) party to the education, training or increased earning power of the other party;
  4. The relative ability of each party for future acquisitions of capital assets and income;
  5. (A) The contribution of each party to the acquisition, preservation, appreciation, depreciation or dissipation of the marital or separate property, including the contribution of a party to the marriage as homemaker, wage earner or parent, with the contribution of a party as homemaker or wage earner to be given the same weight if each party has fulfilled its role;
    (B) For purposes of this subdivision (c)(5), dissipation of assets means wasteful expenditures which reduce the marital property available for equitable distributions and which are made for a purpose contrary to the marriage either before or after a complaint for divorce or legal separation has been filed.
  6. The value of the separate property of each party;
  7. The estate of each party at the time of the marriage;
  8. The economic circumstances of each party at the time the division of property is to become effective;
  9. The tax consequences to each party, costs associated with the reasonably foreseeable sale of the asset, and other reasonably foreseeable expenses associated with the asset;
  10. The amount of social security benefits available to each spouse; and
  11. Such other factors as are necessary to consider the equities between the parties.

Financial issues in divorce can obviously become extremely complicated regardless of fault, length of marriage, or whether there are children or not.

Before heading to trial, the parties in a divorce are ordinarily required to address these issues in an approved mediation setting to determine what, if anything, can be resolved without the need for further court hearing.  At the mediation level, proper representation and knowledge of the financial backgrounds and scenarios is imperative.

You should discuss these matters with an experienced Tennessee divorce attorney if you want your rights preserved and protected.  An East Tennessee divorce attorney will review your case scenarios with you and discuss your options.  This firm handles divorce cases throughout East Tennessee.

To best protect your rights and your best interests, call Aaron Chapman now at (423) 254-5333.

Division of Retirement Benefits

Tenn. Code Ann. § 36-4-121(b)(1)(B)(ii) states that “’Marital property’ includes the value of vested and unvested pension benefits, vested and unvested stock option rights, retirement, and other fringe benefit rights accrued as a result of employment during the marriage.  (However, Tenn. Code Ann. § 36-4-121(b)(1)(B)(iii) states, “The account balance, accrued benefit, or other value of vested and unvested pension benefits, vested and unvested stock option rights, retirement, and other fringe benefits accrued as a result of employment prior to the marriage, together with the appreciation of the value, shall be ‘separate property.’”)  It is thus obvious how complicated these determinations can be.  And given that some individuals don’t even understand the full scope of their retirement options, it isn’t surprising that these assets can be difficult to address in a divorce.

Adding to the complication is the Internal Revenue Code, which requires that retirement plans take strict measures to ensure that the division of marital retirement benefits in a divorce is made in compliance with the laws that permit retirement plans to maintain their tax-qualified status.

Such divisions are usually made with Qualified Domestic Relations Orders, or QDRO’s.  These Orders are drafted by experienced divorce attorneys with specific language that permits retirement plan administrators to disburse benefits in a lawful manner.  There are some threshold requirements of such Orders pursuant to 26 U.S.C. 414(p).  The main requirements are that such an Order “(3)(A)does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan,(B) does not require the plan to provide increased benefits (determined on the basis of actuarial value), and(C) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.”

In reality, obtaining a retirement plan administrator’s approval of a QDRO can be a tedious process and is best handled by experienced divorce counsel.  Further, there are sometimes alternatives to complex retirement plan divisions available that will save the parties’ time and funds.  An experienced Tennessee divorce attorney can help you understand these issues so that you can prevail financially.

This firm routinely deals with the financial issues resulting from divorce.  Thus, in order to best protect your rights and your best interests, call Aaron Chapman now at (423) 254-5333.

Alimony

Alimony (sometimes called spousal support) is an issue in many Tennessee divorces and post-divorce disputes.  Alimony is not guaranteed, regardless of the incomes of the parties.  The Court’s decision will hinge on several factors that should be discussed with an experienced attorney.  These factors are outlined in Tenn. Code Ann. § 36-5-121(i) and include:

  1. The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
  2. The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party’s earnings capacity to a reasonable level;
  3. The duration of the marriage;
  4. The age and mental condition of each party;
  5. The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
  6. The extent to which it would be undesirable for a party to seek employment outside the home, because such party will be custodian of a minor child of the marriage;
  7. The separate assets of each party, both real and personal, tangible and intangible;
  8. The provisions made with regard to the marital property, as defined in ง 36-4-121;
  9. The standard of living of the parties established during the marriage;
  10. The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
  11. The relative fault of the parties, in cases where the court, in its discretion, deems it appropriate to do so; and
  12. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

Additionally, Tennessee law provides for multiple types of alimony, including Alimony in Futuro, Alimony in Solido, Transitional Alimony, and Rehabilitative Alimony.  The different types of alimony in Tennessee are based on the needs and circumstances of the parties at the time of the divorce.

Tenn. Code Ann. § 36-5-121(f) describes Alimony in Futuro, also known as periodic alimony, as “a payment of support and maintenance on a long term basis or until death or remarriage of the recipient. Such alimony may be awarded when the court finds that there is relative economic disadvantage and that rehabilitation is not feasible, meaning that the disadvantaged spouse is unable to achieve, with reasonable effort, an earning capacity that will permit the spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.”

Tenn. Code Ann. § 36-5-121(g) describes Transitional Alimony as “a sum of money payable by one (1) party to, or on behalf of, the other party for a determinate period of time. Transitional Alimony is awarded when the court finds that rehabilitation is not necessary, but the economically disadvantaged spouse needs assistance to adjust to the economic consequences of a divorce, legal separation or other proceeding where spousal support may be awarded, such as a petition for an order of protection.”

Tenn. Code Ann. § 36-5-121(h) describes Alimony in Solido, also known as lump sum alimony, as“a form of long term support, the total amount of which is calculable on the date the decree is entered, but which is not designated as Transitional Alimony. Alimony in Solido may be paid in installments; provided, that the payments are ordered over a definite period of time and the sum of the alimony to be paid is ascertainable when awarded. The purpose of this form of alimony is to provide financial support to a spouse. In addition, Alimony in Solido may include attorney fees, where appropriate.”

Tenn. Code Ann. § 36-5-121(e) describes Rehabilitative Alimony as “a separate class of spousal support, as distinguished from Alimony in Solido, Alimony in Futuro, and Transitional Alimony. To be rehabilitated means to achieve, with reasonable effort, an earning capacity that will permit the economically disadvantaged spouse’s standard of living after the divorce to be reasonably comparable to the standard of living enjoyed during the marriage, or to the post-divorce standard of living expected to be available to the other spouse, considering the relevant statutory factors and the equities between the parties.”

You should discuss these matters with an experienced Tennessee alimony attorney if you want your rights preserved and protected.  An East Tennessee alimony attorney will review your case scenarios with you and discuss your options.  This firm handles alimony cases throughout East Tennessee, so call (423) 254-5333 today.

Modification of Alimony

There are certain circumstances that may warrant a party involved in an existing alimony award to seek modification.  While not all types of alimony can be modified pursuant to Tenn. Code Ann. § 36-5-121, an experienced Tennessee alimony attorney can help determine whether a current alimony award has been misclassified as a non-modifiable award or is otherwise subject to modification or termination based on remarriage or other third-party cohabitation of the recipient.  Occasionally, negotiated agreements to modify alimony awards can be entered into between the former spouses.

You should discuss these matters with an experienced Tennessee alimony attorney if you want your rights preserved and protected.  An East Tennessee alimony attorney will review your case scenarios with you and discuss your options.  This firm handles alimony cases throughout East Tennessee, so call (423) 254-5333 today.

Permanent Parenting Plans

In most situations where custody, visitation, or child support are at issue between parents, the courts will find it best to enter a Permanent Parenting Plan.  Tenn. Code Ann. § 36-6-402 defines a Permanent Parenting Plan as “a written plan for the parenting and best interests of the child, including the allocation of parenting responsibilities and the establishment of a residential schedule, as well as an award of child support.”  These “parenting responsibilities” include:

  1. Providing for the child’s emotional care and stability, including maintaining a loving, stable, consistent, and nurturing relationship with the child and supervising the child to encourage and protect emotional, intellectual, moral, and spiritual development;
  2. Providing for the child’s physical care, including attending to the daily needs of the child, such as feeding, clothing, physical care, and grooming, supervision, health care, and day care, and engaging in other activities that are appropriate to the developmental level of the child and that are within the social and economic circumstances of the particular family;
  3. Providing encouragement and protection of the child’s intellectual and moral development, including attending to adequate education for the child, including remedial or other education essential to the best interests of the child;
  4. Assisting the child in developing and maintaining appropriate interpersonal relationships;
  5. Exercising appropriate judgment regarding the child’s welfare, consistent with the child’s developmental level and the family’s social and economic circumstances; and
  6. Providing any financial security and support of the child in addition to child support obligations. (Tenn. Code Ann. § 36-6-402(2)).

As in all custody decisions, the Court is mandated to determine the best interests of the child in a Parenting Plan proceeding using the following factors:

  1. The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
  2. Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
  3. Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
  4. The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
  5. The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
  6. The love, affection, and emotional ties existing between each parent and the child;
  7. The emotional needs and developmental level of the child;
  8. The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. . . .;
  9. The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
  10. The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
  11. Evidence of physical or emotional abuse to the child, to the other parent or to any other person. . . .;
  12. The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
  13. The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
  14. Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
  15. Any other factors deemed relevant by the court. (Tenn. Code Ann. § 36-6-106).

As of 1997, “the gender of the party seeking to be the primary residential parent shall not give rise to a presumption of parental fitness or cause a presumption in favor of or against such party.”  (Tenn. Code Ann. § 36-6-412).

The facts in each Permanent Parenting Plan case are unique, thus each case deserves an individualized approach.  An experienced Tennessee Parenting Plan attorney can often find facts present in each case that a parent may overlook.  Further, there are procedural rules and complexities that can be used to each parents’ advantage.

Aaron Chapman has successfully helped numerous parents establish or modify their Tennessee Permanent Parenting Plans.  To best protect your children and their best interests, call (423) 254-5333 now.

Modification of Permanent Parenting Plans

Tennessee Parents sometimes find it necessary to seek to modify their Permanent Parenting Plans.  Modification of Permanent Parenting Plans is not automatically allowable.  However, should certain circumstances arise, the Court may enter a Modified Permanent Parenting Plan with substantial changes to visitation, support, or even primary residential parent status.

To succeed in modifying a Permanent Parenting Plan, a requesting parent must demonstrate that a material change in circumstance has occurred and that modification would generally be in the best interests of the child.

According to Tenn. Code Ann. § 36-6-101, “A material change of circumstance does not require a showing of a substantial risk of harm to the child. A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child.. . . If the issue before the court is a modification of the court’s prior decree pertaining to a residential parenting schedule, then the petitioner must prove by a preponderance of the evidence a material change of circumstance affecting the child’s best interest. . . . A material change of circumstance for purposes of modification of a residential parenting schedule may include, but is not limited to, significant changes in the needs of the child over time, which may include changes relating to age; significant changes in the parent’s living or working condition that significantly affect parenting; failure to adhere to the parenting plan; or other circumstances making a change in the residential parenting time in the best interest of the child.”

Aaron Chapman has successfully helped numerous parents establish or modify their Tennessee Permanent Parenting Plans.  To best protect your children and their best interests, call (423) 254-5333 now.

Child Support

Child Support is a delicate field of family law that covers potentially every child in Tennessee, regardless of whether they are a child of divorced parents, never-married parents, separated parents, or whether they reside with a non-parent relative.  Child support can even be enforced after a child turns 18.

Tennessee law gives the courts some discretion in determining income and expenses to be used in calculating child support, however, the majority of Tennessee child support calculations are determined with the Tennessee Child Support Guidelines.  The child support guidelines provide explicit detail for many, if not most child support scenarios encountered in Tennessee.  Many individuals seeking child support do not limit their requests to what the guidelines allow.

Tennessee law gives the courts some discretion in determining income and expenses to be used in calculating child support, however, the majority of Tennessee child support calculations are determined with the Tennessee Child Support Guidelines.  The child support guidelines provide explicit detail for many, if not most child support scenarios encountered in Tennessee.  Many individuals seeking child support do not limit their requests to what the guidelines allow.  Likewise, many persons defending against excessive child support actions do not avail themselves of the protection afforded by the guidelines.  And contrary to popular belief, neither the courts nor any government agency in Tennessee automatically calculate child support.

It is important for a custodial parent or caretaker to seek to establish child support as early as possible, as there is no benefit to waiting to start a child support action (even if parents are recently separated or custody is temporary).

It is also important for owing parents to address child support problems before they get out of hand, as wage garnishments, tax return intercepts, and, of course, jail time cannot be undone.  (All of these enforcement procedures are routinely used in obtaining back-due child support).

Thus, the most important call you will make will be to an experienced East Tennessee child support attorney.  An experienced East Tennessee child support attorney can help save you thousands each year while protecting your children’s best interests.  Our firm handles child support matters throughout East Tennessee.  To best protect your children and your paycheck, call (423) 254-5333 today.

Custody

Tennessee child custody cases come in many forms and are brought by many different types of parties, not just parents.  Usually, disputes are between divorcing or divorced parents, unwed parents, step-parents and parents, grandparents and parents, or other relatives.  Sometimes the state will even become involved if there are allegations of abuse or neglect.  Indian tribes even have the right to institute proceedings, in some instances.

At the heart of any child custody case is the determination of the children’s best interests.  This will govern the outcome of the children’s residence, visitation schedules with parents and other family members, acceptable behavior by parents and relatives, and child support.  The Court is mandated to determine the best interests of the child in a Tennessee custody proceeding using the following factors:

  1. The strength, nature, and stability of the child’s relationship with each parent, including whether one (1) parent has performed the majority of parenting responsibilities relating to the daily needs of the child;
  2. Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child. In determining the willingness of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, the court shall consider the likelihood of each parent and caregiver to honor and facilitate court ordered parenting arrangements and rights, and the court shall further consider any history of either parent or any caregiver denying parenting time to either parent in violation of a court order;
  3. Refusal to attend a court ordered parent education seminar may be considered by the court as a lack of good faith effort in these proceedings;
  4. The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;
  5. The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;
  6. The love, affection, and emotional ties existing between each parent and the child;
  7. The emotional needs and developmental level of the child;
  8. The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child. . . .;
  9. The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;
  10. The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
  11. Evidence of physical or emotional abuse to the child, to the other parent or to any other person. . . .;
  12. The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;
  13. The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;
  14. Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and
  15. Any other factors deemed relevant by the court. (Tenn. Code Ann. § 36-6-106).

You should discuss these matters with an experienced Tennessee child custody attorney if you want your rights preserved and protected.  An East Tennessee child custody attorney will review your case scenarios with you and discuss your options.  Our firm handles child custody cases throughout East Tennessee.

To best protect your children and their best interests, call our firm now at (423) 254-5333.

Grandparent Visitation

The relationship between grandparent and grandchild is typically a special, positive bond that enriches the lives of everyone involved.  However, in certain situations, some Tennessee grandparents can unfortunately find the need to seek Court action to ensure their presence in their grandchildren’s lives.

On the flipside, some families may have well-found objections to such contact based on issues of abuse or other prior conduct.

Tennessee law affords for grandparents’ visitation rights in multiple scenarios.  One main scenario, found in Tenn. Code Ann. § 36-6-302, is the situation of a child that has been removed from the custody of the child’s parents and placed into foster care or a similar setting.  In this situation, the Courts are permitted to establish reasonable visitation between grandparents and grandchildren where the “grandparents would adequately protect the child from further abuse or intimidation by the perpetrator or any other family member” and visitation would otherwise be in the best interests of the child.

In situations where parents are not together or have died or gone missing, or where there has been a significant grandparent-grandchild relationship that has been cut off or severely reduced by the parents for a reason other than abuse, Tenn. Code Ann. § 36-6-306 may afford grandparents with visitation.

To be successful, the grandparent must show:

  • The child had such a significant existing relationship with the grandparent that loss or severe reduction of the relationship is likely to occasion severe emotional harm to the child;
  • The grandparent functioned as a primary caregiver such that cessation or severe reduction of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
  • The child had a significant existing relationship with the grandparent and loss or severe reduction of the relationship presents the danger of other direct and substantial harm to the child.

A grandparent shall be deemed to have a significant existing relationship with a grandchild if the child resided with the grandparent for at least six (6) consecutive months; the grandparent was a full-time caretaker of the child for a period of not less than six (6) consecutive months; or the grandparent had frequent visitation with the child who is the subject of the suit for a period of not less than one (1) year.  (Tenn. Code Ann. § 36-6-306).

Expert witnesses are not necessarily required, but may be helpful, depending on the circumstances.

To succeed in a Grandparent Visitation case, competent representation is imperative.  Each case has its own unique challenges, and there are complex rules and procedures that are constantly being updated.  To best protect your children or grandchildren, and their best interests, call our firm now at (423) 254-5333.

Child Welfare

Child Welfare law is a unique field of family law dealing with some of life’s most sensitive issues.  Issues of child dependency and neglect are typically addressed exclusively by the Juvenile Courts in Tennessee.  Usually a case begins as a Petition for Emergency Custody.  Sometimes these cases are brought by the Child Protective Services division of the Tennessee Department of Children’s Services.  Otherwise, cases are filed by concerned relatives or others with knowledge of specific facts that would show a child to be in need of an emergency change of custody.

Pursuant to Tenn. Code Ann. § 37-1-102, a Dependent and Neglected child is a child:

  • Who is without a parent, guardian or legal custodian;
  • Whose parent, guardian or person with whom the child lives, by reason of cruelty, mental

incapacity, immorality or depravity is unfit to properly care for such child;

  • Who is under unlawful or improper care, supervision, custody or restraint by any person, corporation, agency, association, institution, society or other organization or who is unlawfully kept out of school;
  • Whose parent, guardian or custodian neglects or refuses to provide necessary medical, surgical, institutional or hospital care for such child;
  • Who, because of lack of proper supervision, is found in any place the existence of which is in violation of law;
  • Who is in such condition of want or suffering or is under such improper guardianship or control as to injure or endanger the morals or health of such child or others;
  • Who is suffering from abuse or neglect;
  • Who has been in the care and control of one (1) or more agency or person not related to such child by blood or marriage for a continuous period of six (6) months or longer in the absence of a power of attorney or court order, and such person or agency has not initiated judicial proceedings seeking either legal custody or adoption of the child;
  • Who is or has been allowed, encouraged or permitted to engage in prostitution or obscene or pornographic photographing, filming, posing, or similar activity and whose parent, guardian or other custodian neglects or refuses to protect such child from further such activity; or
  • Who has willfully been left in the sole financial care and sole physical care of a related caregiver for not less than eighteen (18) consecutive months by the child’s parent, parents or legal custodian to the related caregiver, and the child will suffer substantial harm if removed from the continuous care of such relative.

Emergency custody cases involving issues of dependency and neglect are ordinarily required to be heard within 30-90 days of filing, depending on the circumstances surrounding the Petition.  These cases also require a higher showing of proof than ordinary cases and have unique procedures before trial, after trial, and on appeal.

It is thus important that anyone going through an emergency custody proceeding be represented by experienced counsel.  Aaron Chapman has represented parties at every stage of these proceedings and has represented both petitioning parties and responding parents.  To learn more about your rights and to protect the children you love, call our firm now at (423) 254-5333.

Adoption & Termination/Surrender of Parental Rights

Adopting a child can be one of life’s most rewarding moments.  In the legal sense, adoption is ordinarily a technical process requiring the skill and attention of an experienced attorney.

The grounds for termination are well-defined under Tennessee law and include several different types of abandonment.  If the legal parents of the child to be adopted are still living, their parental rights must first be terminated according to these grounds.  It is also possible for legal parents to surrender their parental rights to a prospective adoptive family.  Importantly, legal parents cannot surrender their parental rights unless they are surrendering to a party authorized to accept the surrender, which is usually an adoptive family or child placement agency.  Despite numerous rumors, parents cannot surrender their parental rights solely to the other parent to avoid future child support.

Upon the lawful termination of necessary parental rights, the adoption may generally proceed uncontested.  In the case of a child who is related to the petitioners to a certain degree (including as a stepchild), the process is generally completed with some basic forms and court proceedings.  However, if the prospective adopting parent or parents are not related to the child, further home studies and waiting periods may still be required.

This firm has helped numerous East Tennessee families become complete with adoption.  To learn more about adopting a child, call (423) 254-5333.

Permanent Guardianship

Sometimes families with custody of dependent and neglected children may determine that reunification with the birth parent or parents is not in the child’s best interest.  However, adoption may seem inappropriate as well, given the unique circumstances of the situation.  For these families, Tennessee Law permits the Juvenile Courts to appoint Permanent Guardians.

The custodians, or other appropriate parties, may be named Permanent Guardians.  Pursuant to Tenn. Code Ann. § 37-1-804, Permanent Guardians have the following rights and responsibilities:

  • To protect, nurture, discipline, and educate the child;
  • To provide food, clothing, shelter, and education as required by law, and necessary health care, including medical, dental and mental health, for the child;
  • To consent to health care, without liability by reason of the consent for injury to the child resulting from the negligence or acts of third persons, unless a parent would have been liable in the circumstances;
  • To authorize a release of health care and educational information;
  • To authorize a release of information when consent of a parent is required by law, regulation, or policy;
  • To consent to social and school activities of the child;
  • To consent to military enlistment or marriage;
  • To obtain representation for the child in legal actions;
  • To determine the nature and extent of the child’s contact with other persons;
  • To make decisions regarding travel; and
  • To manage the child’s income and assets.

While these rights and responsibilities are essential the same as those enjoyed by natural parents, Permanent Guardianship is not a termination of the parent-child relationship.  Thus, pursuant to Tenn. Code Ann. § 37-1-803, natural parents still maintain the right to have visitation (to be determined by the Court) and have the responsibility to support the child.

Every family involved in a legal proceeding has a different situation.  If you are interested in learning whether Permanent Guardianship is the right option for your unique family situation, please call (423) 254-5333 to schedule a consultation.

Orders of Protection

Certain domestic abuse or stalking victims may be entitled to an Order of Protection.  While many such individuals are able to obtain at least temporary relief without a lawyer, legal representation can help to ensure that certain benefits are obtained such as (where applicable) child support and resolution of personal property issues.

Pursuant to Tenn. Code Ann. § 36-3-601, Domestic Abuse victims eligible to Petition for an Order of Protection are:

  • Adults or minors who are current or former spouses;
  • Adults or minors who live together or who have lived together;
  • Adults or minors who are dating or who have dated or who have or had a sexual relationship. As used herein, “dating” and “dated” do not include fraternization between two (2) individuals in a business or social context;
  • Adults or minors related by blood or adoption;
  • Adults or minors who are related or were formerly related by marriage; or
  • Adult or minor children of a person in a relationship that is described above.

If you have been served with a Petition seeking an Order of Protection to be entered against you, representation is a must.  Entry of an Order of Protection against you is a matter of public record and will keep you from possessing firearms.  Orders of Protection may affect your employment opportunities.  Further, significant costs can be taxed against you.

Pursuant to Tenn. Code Ann. § 39-13-113, a person who is arrested for violating an Order of Protection is subject to at minimum 12-hour period of incarceration before release without even being convicted.  A person actually convicted of such a violation may be imprisoned for up to 11 months and 29 days.

Once granted after full hearing, an Order of Protection may last for up to one year.  If certain circumstances are present during such period, the Order may be extended for up to five years.  (Tenn. Code Ann. § 36-3-605).

In short, an Order of Protection is not to be taken lightly by either the Petitioning party or the party accused of abuse.  In order to best protect your rights and your best interests, call Aaron Chapman now at (423) 254-5333.

Prenuptial Agreements

Many have heard of celebrities and other well-known wealthy individuals and couples entering into Prenuptial Agreements (sometimes informally called a “prenup”) to best-define their rights in the event of a subsequent separation or divorce.  However, any marrying couple may enter into a prenuptial agreement to best protect the rights and liabilities of the spouses should they later need to separate.

So long as a prenuptial agreement has “been entered into by such spouses freely, knowledgeably and in good faith and without exertion of duress or undue influence upon either spouse,” most provisions of a prenuptial agreement will be given effect in Tennessee pursuant to Tenn. Code Ann. § 36-3-501.

If you are considering establishing a prenuptial agreement in Tennessee, experienced counsel is likely necessary.  This firm has drafted prenuptial agreements for marrying couples and has experience in working with prenuptial agreements at the divorce-court level.

To best protect your best interests, call Aaron Chapman now at (423) 254-5333.

Conservatorship

The elderly and disabled are often left without the ability to care for their personal legal needs, healthcare, and financial matters.  Tennessee courts will often grant Letters of Conservatorship to meet the needs of these vulnerable individuals.

Tenn. Code Ann. § 34-1-101 defines a conservatorship as “a proceeding in which a court removes the decision-making powers and duties, in whole or in part, in a least restrictive manner, from a person with a disability who lacks capacity to make decisions in one or more important areas and places responsibility for one or more of those decisions in a conservator or co-conservators,” and defines a conservator asa person or persons or an entity appointed by the court to exercise the decision-making rights and duties of the person with a disability in one or more areas in which the person lacks capacity as determined and required by the orders of the court.”

A successful conservatorship case is not automatic, however, and the Petitioner must take appropriate preparatory steps in order to avoid many common complications in the process.

An experienced East Tennessee conservatorship attorney can help you take the steps necessary to protect your loved one.  Our firm handles conservatorship cases throughout East Tennessee.

To best protect your loved one and their best interests, call Aaron Chapman now at (423) 254-5333.

Powers of Attorney

Often a competent adult will find it prudent to name a trusted associate or loved one to be their agent (or become their agent at a later time) for various purposes.  Tennessee recognizes two types of Powers of Attorney designations used for long-term personal planning purposes: the Durable General Power of Attorney and the Durable Power of Attorney for Health Care.

The “Durable” nature of these instruments refers to the fact that the appointment of the agent in each of these types of designation lasts throughout any period of mental or physical incompetency or disability.  Likewise, these instruments can be designated to be given effect only in the event of such a disability, making them perfect tools for long-term care planning for many individuals.

With regard to a Durable General Power of Attorney, Tenn. Code Ann. § 34-6-109 extends the following powers to the agent (called the “attorney-in-fact):

  1. Generally do, sign or perform in the principal’s name, place and stead any act, deed, matter or thing whatsoever, that ought to be done, signed or performed, or that, in the opinion of the attorney in fact, ought to be done, signed or performed in and about the premises, of every nature and kind whatsoever, to all intents and purposes whatsoever, as fully and effectually as the principal could do if personally present and acting.;
  2. Receive from or disburse to any source whatever moneys through checking or savings or other accounts or otherwise, endorse, sign and issue checks, withdrawal receipts or any other instrument, and open or close any accounts in the principal’s name alone or jointly with any other person;
  3. Buy, sell, lease, alter, maintain, pledge or in any way deal with real and personal property and sign each instrument necessary or advisable to complete any real or personal property transaction, including, but not limited to, deeds, deeds of trust, closing statements, options, notes and bills of sale;
  4. Make, sign and file each income, gift, property or any other tax return or declaration required by the United States or any state, county, municipality or other legally constituted authority;
  5. Acquire, maintain, cancel or in any manner deal with any policy of life, accident, disability, hospitalization, medical or casualty insurance, and prosecute each claim for benefits due under any policy;
  6. Provide for the support and protection of the principal, or of the principal’s spouse, or of any minor child of the principal or of the principal’s spouse dependent upon the principal, including, without limitation, provision for food, lodging, housing, medical services, recreation and travel;
  7. Have free and private access to any safe deposit box in the principal’s individual name, alone or with others, in any bank, including authority to have it drilled, with full right to deposit and withdraw from the safe deposit box or to give full discharge for the safe deposit box;
  8. Receive and give receipt for any money or other obligation due or to become due to the principal from the United States, or any agency or subdivision of the United States, and to act as representative payee for any payment to which the principal may be entitled, and effect redemption of any bond or other security in which the United States, or any agency or subdivision of the United States, is the obligor or payor, and give full discharge therefore;
  9. Contract for or employ agents, accountants, advisors, attorneys and others for services in connection with the performance by the principal’s attorney in fact of any powers in this section;
  10. Buy United States government bonds redeemable at par in payment of any United States estate taxes imposed at principal’s death;
  11. Borrow money for any of the purposes described in this section, and secure the borrowings in the manner the principal’s attorney in fact deems appropriate, and use any credit card held in the principal’s name for any of the purposes described in this section;
  12. Establish, utilize, and terminate checking and savings accounts, money market accounts and agency accounts with financial institutions of all kinds, including securities brokers and corporate fiduciaries;
  13. Invest or reinvest each item of money or other property and lend money or property upon the terms and conditions and with the security the principal’s attorney in fact may deem appropriate, or renew, extend, or modify loans, all in accordance with the fiduciary standards of § 35-3-117;
  14. Engage in and transact any and all lawful business of whatever nature or kind for the principal and in the principal’s name, whether as partner, joint adventurer, stockholder, or in any other manner or form, and vote any stock or enter voting trusts;
  15. Pay dues to any club or organization to which the principal belongs, and make charitable contributions in fulfillment of any charitable pledge made by the principal;
  16. Transfer any property owned by the principal to any revocable trust created by the principal with provisions for the principal’s care and support;
  17. Sue, defend or compromise suits and legal actions, and employ counsel in connection with the suits and legal actions, including the power to seek a declaratory judgment interpreting this power of attorney, or a mandatory injunction requiring compliance with the instructions of the principal’s attorney in fact, or actual and punitive damages against any person failing or refusing to follow the instructions of the principal’s attorney in fact;
  18. Reimburse the attorney in fact or others for all reasonable costs and expenses actually incurred and paid by that person on behalf of the principal;
  19. Create, contribute to, borrow from and otherwise deal with an employee benefit plan or individual retirement account for the principal’s benefit, select any payment option under any employee benefit plan or individual retirement account in which the principal is a participant or change options the principal has selected, make “roll-overs” of plan benefits into other retirement plans, and apply for and receive payments and benefits;
  20. Execute other power of attorney forms on behalf of the principal that may be required by the internal revenue service, financial or brokerage institutions, or others, naming the attorney in fact under this section as attorney in fact for the principal on such additional forms;
  21. Request, receive and review any information, verbal or written, regarding the principal’s personal affairs or the principal’s physical or mental health, including legal, medical and hospital records, execute any releases or other documents that may be required in order to obtain that information, and disclose that information to persons, organizations, firms or corporations the principal’s attorney in fact deems appropriate;
  22. Make advance arrangements for the principal’s funeral and burial, including the purchase of a burial plot and marker, if the principal has not already done so; and
  23. Access any catalogue of electronic communications sent or received by the principal, and any other digital asset in which the principal has a right or interest, pursuant to the Revised Uniform Fiduciary Access to Digital Assets Act, compiled in title 35, chapter 8. For purposes of this subdivision (23), “catalogue of electronic communications” and “digital asset” have the same meaning as defined in the Revised Uniform Fiduciary Access to Digital Assets Act.

As Tenn. Code Ann. § 34-6-204 explains, the agent designated in a Durable Power of Attorney for Health Care“has priority over any other person to act for the principal in all matters of health care decisions” and “may make health care decisions for the principal, before or after the death of the principal, to the same extent as the principal could make health care decisions for the principal if the principal had the capacity to do so.”  This includes the power to govern the disposition of remains and to decide to withhold health care in the event that the principal is suffering from a terminal condition.

Due to the serious nature of these authorizations, “fill-in-the-blank” forms downloaded online are never advisable, as they are not likely to have been drafted with your specific interests in mind.Instead, these documents are routinely best-prepared by experienced attorneys and executed alongside a Last Will and Testament and/or other simple estate-planning or long-term planning devices.

To best protect your long-term best interests, call Aaron Chapman now at (423) 254-5333.

Wills and Estate Planning

Most everyone has heard of a Last Will and Testament.  A Will, along with other tools of a simple estate plan, can provide much-needed guidance for your loved ones and the probate court after you die.

Wills are governed by Tenn. Code Ann. Title 32, which places strict requirements on their execution.  If these requirements are not met, a Will will not be found to be valid.  This can lead to unplanned for and impractical divisions of your estate.

Despite these unwaivable requirements, many individuals are looking to documents and advice found on the internet and are improperly executing problematic and inaccurate forms, leading to later problems for their heirs and families.

Simple estate planning is a quick and extremely affordable process for most individuals.

To best protect your final wishes, call Aaron Chapman now at (423) 254-5333.