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Visitation & Parenting Time in Tennessee – Breaking Down The Options

July 25, 2024

by admin Visitation

What is Visitation?

There are two terms for the subject of visitation, the first being visitation of course, and the second being parenting time. But, what’s the difference? Is there one? If there is a difference, what is it, and what is the effect of it? In this post, we’ll be exploring visitation and parenting time in Tennessee, and everything it entails.

Visitation vs. Parenting Time

In Tennessee, the courts no longer use words like ‘visitation’ and ‘sole custody’. In 2001, Tennessee courts changed terminology used to be more open and neutral, coinciding with the rising rates of 50/50 custody and more fathers taking up a childcare role. To answer the big question, visitation and parenting time are the same thing, with slight nuances. Visitation refers to the noncustodial parent’s, also known as the Alternate Residential Parent in current parenting Plans, time spent with the child. Parenting time refers to the same thing. A parent that has parenting time is labeled the Alternate Parent, or the Alternate Residential Parent. This means the child spends no more than 50% of the time with you or the named ARP. To see more about ARP’s and PRP’s, look at our other post!

Primary and Alternate Custody

Primary and Alternate custody refers to how much time is spent caring for and parenting the child. Primary custody is awarded to a parent based on factors listed in T.C.A. §36-6-106. Whichever parent fits the criteria best is awarded primary custody by the court, or parents can mutually agree when making a parenting plan. If the case is more severe, and parents cannot communicate respectfully and responsibly, a guardian ad litem can be appointed by the court. The role of a Guardian Ad Litem is to recommend to the court a ruling based on the best possible interests and outcome of the child. Children over the age of 12 can also tell the court their preference, and that will be taken into consideration.

Standard Schedules

Technically, in Tennessee, there is no ‘standard’ parenting plan or visitation schedule. Each one is curated for each specific case and its details, and additionally follows local county rules. There is no standard split, but there are common ones. Nationally, the average time a mother spends with their child a year is around 65%, compared to a father’s national average of 35%. Tennessee ranks the lowest nationally in the time fathers spend with their children, according to a 2018 CustodyXChange study, at an average of only 22%. Factoring in the fact that the most common parenting schedule in Tennessee is an 80/20 split, giving the father the 1st, 3rd, and 5th weekends of a month, as well as additional time during the summer and holidays, the numbers make sense. Other common splits however, also affect the numbers. Some parents can work out 50/50 custody, and congratulations to those who do. However, that is not feasible in every case; most other splits are 60/40, or 75/25 here in Tennessee, but there are 70/30, alongside the 2-2-5-5 custody split as well. To check out the different kinds of custody splits, click this link!

Tennessee and the Effect of a Mother State

Like many other states, Tennessee is a mother state, which means typically, child custody cases lean towards favoring the mother. When a court is deciding where to place a child, they must choose based on the best interests of the child following the Tennessee statute §36-6-106. It’s clear from looking at the numbers that courts favor mothers and women more than fathers and men in custody battles. But why is that? This is because of an outdated belief that women are child carers and homemakers, and that men are workers and breadwinners, despite there being no study or statistic showing mothers are better parents than fathers.

Conclusion

There are many different parenting plan options, and you and your family should pick one that makes the most sense for all of you. Try to factor in things like distance, transportation and education, etc. Always take into consideration your own special circumstances, and make sure your attorney is aware of them too. If you want to know more about parenting plans or Alternate and Primary parents, check out more of our blogs. If you want to call and schedule a consultation, give it a try now!

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

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Personal Representatives in Tennessee

July 25, 2024

by admin Probate

What Are Personal Representatives

Personal representatives are those who represent the personal interests of the deceased. If a person passes away, the person appointed by the testator to carry out the terms of the Will is named executor. If someone has passed away without a will, the court will appoint an administrator during probate proceedings in place of the executor. Administrators and executors are both personal representatives of the deceased, and bear the responsibility of carrying out their final wishes. Both executors and administrators also bear the responsibility of closing the estate, or probate. Anytime a personal representative is appointed, it means there is a probate case happening. Probate is when someone has passed away and now someone must close their estate and distribute their remaining personal belongings.

Role and Responsibilities

Though getting to be appointed an executor or administrator is a different path, much of the responsibilities are the same. Both executors and administrators bear the probate responsibilities, including but not limited to assessing the estate, paying off debts, and distributing assets. One thing to note is that executors are responsible for carrying out final wishes, whereas administrators are not, because the decedent left no will and no wishes. Where executors distribute assets according to the will, administrators distribute assets according to Intestacy laws here in Tennessee, covered in T.C.A. § 31-2-101.

Compare and Contrast

Despite both positions maintaining the same general responsibilities, there are slight differences between the two. Both must go through the probate litigation procedures, attend court hearings, account for assets, and distribute them accordingly, but where an executor distributes according to their Will, administrators follow Tennessee Intestacy laws. Say a woman, Tessa, passes away. Tessa has no children, and is 27 years old. On her commute to work with 2 of her coworkers, the three are hit by a drunk driver in a pickup. According to Tennessee Intestacy laws, distributing her assets according to T.C.A. § 31-2-101 is like so:

First, because Tessa is only 27, she didn’t make a will, so the court appoints an administrator to distribute Tessa’s belongings. Then the administrator must find and contact Tessa’s parents’ to inform them of her passing (if they do not already know) and inform them that they are her heirs-at-law. Tessa’s mother and father are divorced, but both are still alive, so the administrator must decide how to split the assets equally among the two.

Now let’s take the same exact situation, but where Tessa did make a Will:

Tessa, despite being 27, already wrote up an early will. During the initial hearing, her Will is validated, and the court makes her mother the executor, like she requested. In her Will, Tessa requests that her physical belongings, like her car, jewelry, and clothes, are given to her siblings. Tessa’s executor, her mother, gives Tessa’s sister her clothes and jewelry, and gives Tessa’s brother her car, so that the belongings are split equally. Tessa also requests any money in her checking account be divided between her brother and sister, but requests that any money in her savings and work retirement/401k be put in her parents’ retirement fund.

These two situations are similar, and yet still distinctly different. Despite all other factors being the same, because Tessa had a Will, the outcome of her case was drastically different. When Tessa passed away Intestate, the court and her family had no idea what her final wishes could have been, and had no idea how she wanted her belongings to be distributed. However, in the opposite situation, where she did have a will, her family all knew what she wanted to go where. Tessa’s family can grieve in peace knowing they fulfilled their daughter’s final wishes, and Tessa can rest peacefully knowing her things went to her family just how she wanted them too. Comparing the situations, we can clearly see the small nuances that make them different from one another.

Living Representatives

A form of representation, guardianship and conservatorship pertain to watching over the general wellness of another individual, making sure they have all their basic necessities met and are in the best possible state of mind. Guardianship and conservatorship, like executors and administrators, have a distinct key difference. Guardianship is given to those deemed too young to take care of themselves, whereas conservatorship is given to those too old or incapable of taking care of themselves. Like executors and administrators, the responsibilities pertaining to the two roles are very similar. Medical visits, appropriate nutrition, clothes, and education are all responsibilities conservators and guardians have, alongside financial responsibilities over the estate of those they are taking care of. Those being taken care of are allowed to contest guardianship or conservatorship if they want to, and the court only determines conservatorship and guardianship in the most severe cases, as the decision is limiting for the conservatee and guardee in regard to personal choice and preference.

Conclusion

Personal representatives are vital and necessary for the smooth flow of probate, but holding the title comes at a cost. Losing your loved one is already difficult, and if you need help getting a foot in the door, call our office today. Our seasoned attorneys have years of probate experience and would love to help you.

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Dependency & Neglect – What is it? Who does it affect?

July 25, 2024

by admin Juvenile D&N

Intro

What is dependency and neglect? What does it mean in legal terms? This post will cover some of the basic information of dependency and neglect in court so that you have a fundamental understanding of what is going on in your trial. It’s important to understand what’s going on, rather than going with whatever your lawyer tells you. At Hairston & Associates, we value your opinion and do everything we can to make sure you feel heard.

What is Dependency & Neglect?

Dependency & neglect is any abuse of a child that endangers their wellbeing. A court will determine dependency and neglect when a parent is observed to take improper or unlawful care of a child. A court has the ability to transfer custody of a child to someone else if they’re found being dependent and neglected, and can even terminate the rights of parents if it’s found to be in the best interest of the child. Often, the Department of Child Services (DCS) will take children out of their parents improper and usually endangering care, and place them in close relatives’ homes for better, safer care. A child that is dependent and neglected, pursuant to T.C.A. §37-1-102(b)(13) is a child:

Who has no parent or custodian around to support them
Who has a parent or custodian who is found incapable of supporting the child due to reasons like; mental incapacity, cruelty, immorality, or depravity
Who is under an unlawful or improper care from any federal, state, or local organization, institution, corporation, agency
Who has been kept out of school willfully
Who has a parent or custodian unwilling to provide medical care
Who has been found doing something unlawful or illegal due to lack of supervision
Who has been found in such a state of want or need as to injure or endanger themselves or other children
Who suffer from physical abuse or neglect
Who has been under the guardianship of a non-family member for six (6) consecutive months, and that person has not sought legal custody
Who has been allowed or encouraged to view or participate in explicit materials and acts
Who has been the sole financial provider and physical caregiver for at least 18 months

Children who are dependent and neglected fit one, or often more, of these criteria. Children who are dependent and neglected also face Adverse Childhood Experiences, or ACE’s. ACE’s affect children’s cognitive, emotional, mental, and social development. If a parents’ rights have been terminated, DCS will take legal custody of that child, and place them in foster homes until they are adopted. Around 205,000 children enter the foster system annually, compared to the 215,000 that leave the system. Of that number, 47% are children who go back to their primary caregivers, 25% are children being adopted, and 9% are children who age out of the system.

What Happens to a Child if They’re Found Dependent & Neglected?

Because of the problem neglect poses on children, there are solutions. Children who’ve been found dependent and neglected are most often placed with the alternate parent or other relatives until their primary parent corrects their actions and gets back up on their feet. If a child has been in temporary care of another, that person can adopt the child. However, adopting children who already have legal guardians isn’t possible. If you want to adopt a child through the foster care system, and their parents still have a legal guardianship over them, you can petition for the termination of the parents’ rights. Following guidelines set out in T.C.A. §36-1-113, a parents’ rights can only be terminated if it has been proven to the court that that decision is in the best interest of the child.

However, what is not accounted for is the long and short term effects of living dependent & neglected as a child. Or, if they were dependent & neglected and put in the foster system, then adopted? What are the effects of the foster system in America, but more importantly, right here in Tennessee. As stated before, children who are living dependent and neglected often face other difficulties in their lives. ACE’s, or Adverse Childhood Experiences, are “potentially traumatic events that occur in childhood”. ACE’s have a lasting effect on the mental and physical well being of children, and these effects can last years, all the way to adulthood, even affecting their own children. ACE’s can increase your risk for sexually transmitted diseases, maternal health problems, and suicide. Your risk of cancer, diabetes, heart diseases, depression, stress, and toxic stress also increase the more you experience ACE’s. Prolonged toxic stress can impact the growth and development of a child’s brain, and in turn affects the attention span, learning, and decision making skills of the child.

What Can I Do if my Child is Found Dependent & Neglected?

If the court has decided your child is in fact, dependent and neglected, your child is either going to be placed with your co-parent, your co-parent’s family, your family, or if none of them are able and willing, a safe environment in the foster system. The child will be in that home for the remainder of the court proceedings, and until you have corrected your actions. You can appeal the charge, however you must bring new, clear & convincing evidence. Regardless of preferences of anyone, the court will make decisions based on the best possible interest and outcome for the child. When transferring custody or establishing guardianship, the adult must fit the criteria set forth in T.C.A. §36-6-106 and T.C.A. §34-1-102, respectively.

Conclusion

Dependency & Neglect is a tough topic, both to learn about and to have to go through. Children are the most vulnerable, and every parent should do everything they can to give their child what they deserve. Dependent and neglected children have a higher risk for mental, emotional and physical ailments, like toxic stress, depression, suicide, cancer, or heart diseases. It’s unfair to put a child in this situation. If your own child is experiencing any of these situations, call Hairston & Associates so we can help, there’s nothing we’d rather do.

Foster statistics (https://www.aecf.org/blog/child-welfare-and-foster-care-statistics)

ACE statistics (https://www.cdc.gov/aces/about/index.html)

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Primary and Alternate, what do they mean? – Exploring the deciding factors in custody plans

July 25, 2024

by admin Child Custody Parenting Plan

What is a Primary Parent

Primary parents, or primary caregivers, are people who take care of or watch the child(ren) for at least 50% of the time. A primary parent can be adoptive parents, legal guardians, as well as both mothers and fathers. It’s important to note that even if there is a 50/50 custody arrangement, a primary parent must be named for legal purposes. Primary and alternate parent responsibilities do not differ much in type, but rather volume. Deciding who is the Primary parent and who is the Alternate parent is decided in court. Custody and child support cases are both heard in Juvenile, and custody battles happen with or without a previous marriage. Primary parents shoulder much of the weight of taking care of their child(ren), taking them to school, feeding and clothing the child, setting up medical and dental visits, etc. and they are almost always doing this with a full time job! Parents really are superheroes.

The Role of an Alternate Parent

The role of any parent is to support their child. The role of an Alternate parent should be to support the primary parent in providing care for the child(ren). Both the Alternate and the Primary parent should encourage the child(ren) to continue building a relationship with the other parent. There’s no real ‘role’ either parent to play, you just do what you think is best for your child and their future. Alternate parents should aim to be flexible, and try their best to continuously update the primary parent. Try to plan tasks and activities for you and your child(ren) to do together. Being there and doing your best is what is most essential, and your child will come to appreciate it and you. It’s also important to note that most alternate parents are the ones paying child support, where the primary parent is receiving it.

Types of Parenting Arrangements

Tennessee is a mother state, meaning when in court, the judge or ruling is almost always in the mother’s favor, which also means you fathers are gonna have to work extra hard to win over the court and swing the case in your favor. Tennessee most commonly has 80/20 splits, favoring the mother and giving her around 280 days, and the father 80. It is rare, but 50/50 custody splits happen, as well as 60/40 and 70/30. Again, in Tennessee these splits favor the mother, because Tennessee is a mother’s state, and actually ranks bottom on a list of states measuring the amount of time children spend with their father, check out that statistic here!

Working in Tandem

In 2001, the state of Tennessee officially started using legal language like “primary parent” and “parenting time,” rather than their previous counterparts, “sole custody” and “visitation”. The gentle language used denotes a significant change in the way Tennessee goes about their family legal procedures. The quality of care received by the child(ren) impacts their social and cognitive growth, so work with your co parent in accordance to your own parenting plan for the well-being of your child. If you ever disagree with a decision the co parent makes, always be sure to address it and communicate how you feel to the best of your ability. Pursuant to §36-6-402, in the state of Tennessee, an attempt at a resolution is required in civil disputes, so if attempting to speak to the co parent does not prove to be effective, the next step is mediation.

Conclusion

Our attorneys here at Hairston & Associates have mediation certification and experience! If you have an open child custody case, contact us today and see how we can help you!

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Intestate Probate – How estates are settled without a will

July 25, 2024

by admin Probate

Probate Proceedings

Probate proceedings and Probate court are a special, separate type of law that oversees validating the Will of a deceased person, and dispersing their assets according to their wishes. However, sometimes, there are too many tragic accidents, and that can’t happen. Though probate is a separate division of law, it is not any harder or easier than another. The difficulty of a probate case is measured by the size of the estate, meaning the more assets and debts there are to account for, the longer the process will take. Most probate cases are anywhere from 6 months to 2 years, and can be even longer if the estate is larger. Contesting a probate case, or having someone contest yours, can elongate the process as well. In every probate process there are always the same general steps:

Proving the will in probate court, if there is one
Making a comprehensive inventory of all the decedent’s properties, assets, and debts
Dividing and distributing assets leftover after amortization to the family or heirs-at-law

No matter the type of probate, the size of the estate, every probate case follows the same general guidelines. In Testate probate, it’s much easier to follow this routine, as a Will provides a strict rule to follow. In Intestate probate however, the story is just slightly different.

Intestacy Probate

In Intestacy Probate, there is no will, so the first step, proving a valid will, is out. Instead, there will be a hearing with the court where the administrator of the estate will be named and officialized. This hearing is equivalent to a hearing in a Testate probate case where the will is validated and the executor is officialized. In both cases, the executor and administrator must pay off any outstanding debts, This can be done with inherited assets, by selling off properties, or out of pocket. In Intestate probate, because there is no will of wishes to follow after death, estate division is in accordance with Tennessee statute §31-2-101. In Intestacy the order assets would be divided and distributed is like so:

If the deceased had a spouse or children, the assets would first go to them. If a spouse and no children, the spouse would inherit 100% of the assets and properties. If there is a spouse and a child, the estate would be divided evenly among the two. If you have a spouse and 2 or more kids, the surviving spouse gets either ⅓ of the estate, or the children’s equal share, whichever is greater. If the decedent’s own child passed away after having a kid, the grandchild would inherit the deceased assets in place of their parents.
If there is neither a spouse nor a child, the estate would pass to the parents of the deceased. If the parents have already passed away themselves, it would go onto the siblings of the deceased. If they were an only child, the estate would pass back up the generational line to the grandparents.
On the off-chance that everyone has passed or there is no living family in the first place, the State would look for the closest relative cousin. If even that has failed, the estate is just turned over to the State. It’s important to note that these laws must be strictly followed, and because of that, state courts don’t particularly care about something like cutting someone off or a damaged relationship.

All this to consider, it makes you think how much easier it is to have a will. It makes it easy on your family if you pass and they have to grieve you. It may not make your life easier but it brings peace of mind knowing that if something were to happen to you, your things are safe and will go where you want them to.

Assets and Property types

It’s important to understand types of assets and properties. Some accounts and properties are not subject to probate court, whereas some or most are. Probate assets and non Probate assets are distinctly different. Probate assets are assets the Probate court will use to pay off debts and divide between your heirs. Non Probate assets are just that, assets not subject to Probate. This includes, but is not limited to; any jointly owned property or account, any account with a named beneficiary, POD/TOD accounts, life insurance, retirement, etc. Probate assets would be the opposite, any account or property in just your name that does not have a named beneficiary. Vehicles, jewelry, even boats can also be Probated. Another important piece of information is knowing property types. Certain property types qualify as Probate and Probate assets. The three different property types are;

Exclusive property ownership: Exclusive property ownership is when the decedent exclusively owned the property, meaning their name was the only one on the deed.
Joint property ownership: Joint ownership is when two or more people share the property together, and both or all names are on the deed.
Trust property ownership: Trust ownership is when the decedent names a beneficiary for the property if they pass. The trustee, or the property receiver, would have trust ownership over the property.

Conclusion

There is so much more to explore in Probate, it’s’ such a niche division not many know about. The more information you have access to the less you will stumble on this journey. Dealing with probate proceedings are another weight to add to losing your loved one. That’s why our office is proud to have probate attorneys that work hard for each client, individualizing each case and experience to cater for all your needs.

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Understanding Probate – Roles and Responsibilities

July 25, 2024

by admin Probate

What is Probate Court?

Probate Court is a special court that oversees validating the will of a deceased person and dispersing their assets according to their wishes. In a probate proceeding, an appointed executor or administrator will execute the probate process. Most of the probate process does not actually take place in a courtroom, rather the executor or appointed administrator will take care of the process on their own or with counsel and officialize it in the courtroom. If the probate process does happen in a courtroom, it is usually because the will has been contested or there are debt claims from outside parties. Debt claims are settled either between the executor, or the court will give a ruling if no agreement is made. Contesting a will however, will elongate the court procedures and make the process seem like a mountain too big to climb. In this article you will learn a little about the probate process, factors that may affect the process, and other relevant information.

What is the Probate Process?

The probate process always has 3 basic, necessary steps;

Validating the will, if there is one
Paying off any existing outstanding debts
Distributing the leftover assets.

If the decedent left a will, they will name the executor in it. The executor is responsible for executing the decedent’s will and carrying out the final wishes. They are responsible for filing the probate petition with the local county probate or chancery court. To file a probate petition, the executor must gather all relevant documents; last will, death certificate, letters testamentary, and notice to creditors and family members. Once submitted and reviewed, the court will schedule a hearing where all those given notice are free to view, and where other family members are given the opportunity to contest the will. If there was no will, this is where the court would appoint an administrator, usually a close family member. When the executor, or court appointed administrator has been officialized, they can start to tackle the probate procedures. First, the executor must compile a comprehensive list of all assets and debts the decedent once owned. This includes things like real properties, land, vehicles, jewelry, accounts, trusts, etc. in their name. Once that step has been taken, the executor can start to pay off any debts your loved one may have had. The debts must be claimed within 60 days after service (or notice of death), and any claimed debts must be paid off before the probate process can move on. Your family can use your assets to do so if they are unable to pay the debts out of pocket. When that is done, you can go ahead and schedule a final hearing where the court will review the presented information and assist in splitting the assets between the heirs. The executor also bears the responsibility of providing the court a final accounting that details any and all transactions made by the executor.The Court will finalize everything and your petition will have its Final Approval. One less thing to worry about during this hard time.

Wills

The existence of a will is crucial in probate cases. If there is one, it must be proven to be both the decedent’s and valid. Families can contest the execution of a will, the validity of a will, they can also contest the named executor in the will and petition for someone else to be appointed. A will is important because it gives an outline to how the deceased wanted their assets split. Wills are guiding documents that ensure the settlement process follows their wishes. Not only do wills protect your assets when you leave, but they provide clarity for your loved ones amidst the emotional turmoil.

Vocab & FAQs

There are some words you should know, as they define how a probate case will be handled. Whether or not they apply to you, it’s good to have the knowledge. These words will help you better grasp what you’re reading:

Probate Assets – Probate assets are assets subject to probate after you’ve passed away, things like real properties, cars, your bank account and savings account, and any valuable personal property
Non-Probate Assets – non-Probate assets are just that, assets that cannot be subject to probate by the court. This includes, but is not limited to, things like jointly owned properties, bank accounts, trusts or accounts with named beneficiaries, or a decedent’s partner’s properties
Testate – When you die in Testate, you have died with a valid will to help disperse your belongings. After it is validated in a courtroom, your family must disperse your belongings according to your wishes. Wills ensure you get what you want even after you have passed away.
Intestate – When you die intestate, you die without a will, meaning the court will help decide how to split your assets. They will appoint an administrator, and the administrator will carry out their role according to the factors set forth in 31-2-101.
Testator – Testators are people who have made a valid will with their legal counsel. It is ‘any person who makes a will.’
Executor – The executor is named in a testator’s will. They have the responsibility of carrying out and executing their loved ones final wishes. A hard, heavy burden.
Administrator – Administrators are court appointed executors. They are usually appointed when there is no will left by the deceased, or when families have contested the named executor. If the court decides to appoint an administrator, it will most likely be a close family member.

Each of these words are going to be used in this article. It’s important to understand what you are doing, especially when it pertains to legal matters, as you wouldn’t want to get arrested for a crime you didn’t even know you were committing. There are other things you should be aware of when involved in a probate case, like the intestate order of inheritance. the Right of survivorship or Tenants in common. The intestate order of inheritance, according to § 31-2-104 is as follows; Surviving spouse of the deceased, surviving child(ren), then parents of the deceased, siblings of the deceased, and then finally, if no previous family member is alive, both the maternal and paternal grandparents of the deceased would inherit leftover assets. The Right of Survivorship pertains to how joint ownership of real property would transfer to the other owner without passing through probate, whereas tenancy in common would pass down ownership to heirs through without the probate process. There is always more you can learn to ease the process of losing your loved one, however we recognize the difficult time it may be and are more than equipped to help you and your family through it. Give our office a call and see what steps we can help you take to move forward.

Fact Patterns

There is a big difference between testate and intestate probate cases. Let’s look at some and determine the what would happen in each separate case:

For example, Eleanor and James are sixty-three and sixty-seven, respectively. They had 3 children together over their 30 year long marriage; Kaylee, Josh, and Frankie. When James passed away, Eleanor was his named beneficiary, so any accounts he owned with beneficiaries were not subject to probate. However, his other accounts and their estate was, as she was not the beneficiary, they did not jointly own his other accounts, or the property. Because James passed away intestate, we follow the Order of Inheritance pursuant to § 31-2-104, and the estate would pass to Eleanor, then to the children when she passes.
Say it’s been 15 years since James passed. Eleanor passed soon after him, and besides the estate, all the assets were split evenly between the 3 children. The parents’ home, left to the youngest, Frankie. Because the home is on the beach, the 3 siblings have been using it as a family vacation house. One year, they are spending the summer together with their families, going to dinner when a semi truck T Bones their car, killing Frankie and Josh. Frankie was the youngest and single, so she had no partner or children for the house to pass down to, and because of this, the house was split by the court between the two remaining siblings in joint tenancy.
Here’s another example, Clara is a 26 yr old pediatric nurse. She is on her way home from a 12 hour shift when she accidentally falls asleep at the wheel and veers off the bridge. Clara had a baby in the beginning of college, and has been taking care of him since. Clara, despite being young, had made a will because of her son, and named her parents both heirs and executors, asking them to take in her son should something happen to her. Clara had set up a trust for her son, putting money in it in small increments. Because it’s a trust with her son as a named beneficiary, the trust was not subject to probate, whereas her other assets and belongings were. Her parents are the named heirs, and inherited her leftover assets after probate.

Conclusion

The biggest takeaway from this article should be, always write a will. If you have a valid will, all your assets and properties will be ensured protection, and if you have a will, your things will be dispersed as you want them to be. Wills make the process quicker and easier, especially during a time of loss. There are always steps you can take to smoothen the process, and our firm is here to take those steps with you.

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Empowering Parents – Tools for Enforcing Child Support

July 25, 2024

by admin Child Support

What Can You Do

The first thing you should do when your co parent is not paying Child Support is open a line of communication. Try to first understand why they were not paying their obligated child support. If you cannot get into contact with the other parent and are still in the midst of legal procedures, you should file a Motion To Compel or even a Petition of Contempt. These filings are the easiest and most simple way to make somebody comply with court orders such as child support. However, these are short term solutions that are not available for every person getting paid child support. Here are some other resources and actions you can take to enforce your child support order.

First Things First

Remember to always be courteous and respectful to the other parent, even when it’s hard, and even when they aren’t there. If you’re unable to get into contact with your co parent and are not in an active court case the first thing you should do is report the delinquent parent to DHS or your local county child support office, they will assist in helping you take steps to enforce your child support order. Depending on the case and situation, the officials will choose the best action to take to enforce the order. Of course, each case is unique in its components and elements, and will be considered carefully before a course of action is taken.

Legal Procedure

In litigant procedures like divorce, child custody and support are determined in parenting plans pursuant to T.C.A. 36-6-404. If you file a petition or motion, the other parent may contest petitions or motions with council, or pro se. Courts in Tennessee favor neither the mother, nor the father, but rather the child. In a juvenile case, the courts will follow through with a plan of action that best supports and benefits the child(ren) and their wellbeing. Modifying an existing parenting plan is always possible and either parent can go back and file for a modification of a parenting plan. If your child is not getting the care they deserve, consider pursuing legal action. Give our office a call for the best chance.

Enforcement Options

You may file a Petition of Contempt in your active case if your co parent is not paying the ordered child support, or you may open up a new case if you do not have one already. Other options include, but are not limited to:

Wage Garnishment – When the delinquent parent’s employer withholds a percentage of their check to give to the county to send to the custodial parent
Intercepting tax returns – IRS will deduct a percentage of tax returns to offset outstanding balances. Any parent who owes more than $500 dollars to the support case, they are automatically subject to the “Tax Refund Offset Program.’
Liens on properties – DHS can issue liens on any properties and assets in your name. If you owe child support and withhold those funds knowingly and needlessly, the county can issue a lien on your assets, like a home, a car, a boat, bank accounts, etc.
Seizing properties – DHS is capable of data matching and will do so when necessary. If there is an active lien on a property and the non-custodial parent still withholds payment, the county can seize and sell properties to fulfill the child support obligation.
Seizure of bank accounts – DHS, using the same data matching technology can also freeze or seize bank accounts, bonuses, retirements, social security, disability, retirement etc. Anything you have financial ownership of is subject to seizure or deductions.
Seizure of licensure – DHS is also capable of freezing licenses. Driver’s licenses are most commonly frozen, of course, but other licenses like medical or legal practice licenses, aviation licenses and more are all subject to seizure when you knowingly and needlessly avoid your child support obligations.

Resources

There are so many resources available for single parents, especially single mothers. There are resources available for parents who’ve broken up but understand the importance of stepping up to raise their child. These are just some;

TN Child Support Guidelines
Local Child Support offices and agencies
TN Child Support Fact Sheet
Child Support Calculator
Printable Child Support filing documents

Summary

Parents missing or skipping out on their child support obligation is all too common, and thankfully there are resources available and actions you can take to pursue what’s best for your child. It takes a village to raise a child, let us be a part of yours and give us a call today! We here to help and support you through your legal procedures in any way we can.

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Determining Finances – Navigating the Elements of Child Support

July 25, 2024

by admin Child Support

Introduction

There are many factors to account for when determining Child Support between two parents. The court will look at things like annual income, the number of children, the child’s relationship with the parent, which parent is the custodial parent, or other similar factors listed in the Child Support Guidelines. Custody is also another factor the courts consider, and it may be the most important one. In a divorce you may be able to split the home value, assets, or other property, but you can’t split your children. Here in Tennessee, both parents are expected to care for and participate in their minor child’s life, mentally, physically, and financially, until they reach the age of majority.

Process of Petitioning for Child Support

To file for Child Support, paternity must first be established. This is because Child Custody and Support in Tennessee will always encourage both parents to take an active role in their child’s life, and determining paternity ensures the child will form a bond with their ‘natural parentage’. Once paternity has been established, you can file a petition with your local Juvenile or Chancery Court. The court will schedule a hearing, with notice of service to the other party as required per Local Rule 4. There, you and your child’s other parent must make a case for and against the petition. You and your co parent may reach an agreement without using mediation or vicious court battle, making the process smoother and simpler for you, however that is not the common case.

Factors That Affect Child Support Determination

There are numerous factors that contribute to how Child Support is determined in Tennessee, but the most important ones are, but not limited to:

The number of children being supported – One factor listed is the number of children the paying parent is financially supporting.
How much parenting time each parent has – Another, very important factor, is custody, and how much parenting time each parent has. The less time a parent is caring for the child, the more the parent is required to pay.
The age of the child(ren) – If your kids are younger, there are additional expenses such as diapers and daycare parents have to worry about.
Each parent’s separate monthly income – Each parent’s separate monthly income is an important factor in terms of actual financials. If the primary custody parent makes less, but cares more for the child, the alternate custody parent will end up paying more in Child Support. If the alternate custody parent makes more, but cares for the child less, then they will have to pay more in Child Support.
Child Care expenses – Childcare expenses includes food, housing, toys, clothes, etc. This factor covers each possible expense for a child
Medical expenses – Medical expenses may include pediatrics, dental, optometry, and other medical visits. If parents do not have insurance or insurance does not cover everything, the uninsured remaining balance will be split between the parents according to their permanent parenting plan
Educational and extracurricular expenses – This factor mostly pertains to older children in sports and other extracurricular activities and how parents are to split payment, or children who may attend private schools or take private lessons.

There are deviations from time to time, case specific details that alter the outcome of the proceeds, like a parent with an unusually high income, or parents who live far away from one another. Those kinds of details will affect the case tremendously, and should be presented to the court regardless of if it benefits you or not. Being honest and open with the court may open doors for you later in the case.

Why Is Custody So Important

Custody, alongside the gross monthly income of parents are the two biggest deciding factors in Child Support cases. The more you make, the more you pay. In any custody case, a Permanent Parenting Plan, or PPP, is drafted. In this PPP, you and your co parent will designate times and days in which each of you will have your child(ren), which parent will pick up and drop off the child, which parent is responsible for medical visits, and other things of similar nature. The PPP will also designate the ‘Primary Residential Parent’ (PRP) and the ‘Alternate Residential Parent’ (ARP). The PRP is the parent with the most time spent caring for the wellbeing of the child, while the ARP is the parent who spends less time caring for the wellbeing of the child. Even counting the amount of money each parent makes, the ARP will always pay the PPP, never the other way around. The less time you spend with the child, the less you are caring for them, and thus the less you are spending on them.

Enforcing Child Support Orders

There are a couple ways to enforce an issued Child Support order, even if the ARP is unwilling. If a parent is unwilling to pay the designated child support obligation, you should first file a Motion to Compel, if you are in an active court case. If you are not, you should report the delinquent parent to DHS, so that they may go through the proper channels and enforce the order. Some common financial penalties include:

Wage Garnishment
Seizing invested assets
Intercepting Tax Returns
Placing liens on properties
Seizing bank accounts

These actions are made in an attempt to force the ARP to pay their Child Support Obligation. Other penalties include revoking driver’s license or short jail time, however those are more serious punishments for delinquent parents who have not paid their child support for a long time, or for multiple children.

Conclusion

Child Support is determined according to factors set forth in Tennessee Code Annotated § 36-5-101. Among those factors, custody and income are the biggest and most important. Child Support is vital and necessary when raising a child, it ensures the child will be properly cared for, and ensures they will get everything they need. The process of obtaining child support may be difficult sometimes, but it’s worth it in the end, because it’s for your kid. If you need help filing or modifying your child support order, contact our office today. Our attorneys have years of experience and look forward to working with you!

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Are You A Criminal? – A Look Into Civil and Criminal Contempt

July 24, 2024

by admin Contempt

What Is Contempt?

Contempt is the willful obstruction of justice, whether that be in the form of disobeying court orders, directly or indirectly, any action that hinder an investigation, disrupting proceedings, blatant disrespect or defiance to the Judge or Magistrate. There are two types of contempt, civil contempt and criminal contempt, and depending on the severity of the contempt of court, the punishment will vary, from fines to jail time.

Civil Contempt

Civil contempt is a far easier crime to commit. Civil contempt occurs when someone fails to comply with a court order that benefits a private party, i.e. child visitation and child support, restraining orders, or delaying the submission of evidence. If a situation like this arises in your case, your lawyer may file contempt of court against the opposite party, and vice versa. Contempt of court does not have the goal of punishing the contemnor but rather compliance of the court order(s). To establish contempt of court, there must already have been a court order served to the other party, and you must prove that failure to comply with the court’s orders was willful. Civil Contempt is easier to prove as it does not have to be proven “beyond a reasonable doubt,” unlike criminal contempt. Once you or the other party complies with the court order, the contempt will be “purged” and the case may continue. In a worst case scenario, the court determines compliance is no longer feasible, and you may be fined or imprisoned for a short time. In some cases, the court may issue a warrant for the contemnor’s arrest if other sanctions have failed to achieve compliance.

Criminal Contempt

Criminal Contempt is blatant disregard of the court and its procedures. Criminal contempt involves actions that directly interfere with the administration of justice or defy the authority of the court itself. Any disrespect of the court, the magistrate or any other judicial officer can result in criminal contempt. The two types of criminal contempt are direct contempt and indirect contempt. Direct criminal contempt occurs when disruptive behavior or disrespect happens in court, such as being verbally abusive to the judge, refusing to follow court decorum, or being physically disruptive at proceedings. Indirect criminal contempt involves behavior outside the court that still obstructs justice or disrespects the court and its decisions, such as disobeying a court order or violating a gag order. The purpose of criminal contempt is to uphold the authority and dignity of the court system and to ensure that judicial proceedings can continue without disruption. It also intends to maintain respect of the court and legal procedures. Criminal contempt should be based on the objective standard of whether the conduct in question disrupts or obstructs the administration of justice, rather than focusing solely on the impact on specific individuals involved in the case. Committing criminal contempt of any kind has its penalties, from fines to brief jail time. If you’ve committed direct contempt of the courtroom, the judge has the authority to fine you, throw you out of the courtroom, or even imprison you. Because there are more severe punishments when having committed criminal contempt, it must be proven beyond a reasonable doubt that the contemnor has willfully engaged in the actions.

Compare & Contrast

In both situations, the contemnor must be served proper notice according to Local Rule 4: Civil Procedures. In any legal case, a person must be served notice, otherwise the litigant process is null and void as the prosecuted person may claim no knowledge of the case. You can only commit civil contempt in your own case, however any person in a courtroom can commit criminal contempt. Unlike civil contempt, criminal contempt cannot be purged or expunged, and it goes permanently on your record. Aggravated criminal contempt will put you in jail longer, but the average jail time of someone who has committed criminal contempt is no more than 6 months.

Conclusion

Regardless if you have committed contempt yourself, or if you want to file a motion against someone for contempt, civil or criminal, it’s all avoidable. The key is self control and emotional regulation. Following court orders to the best of your ability will help your case, showing the bench you are willing to try and are open to their opinions and rulings. Contempt serves as a crucial mechanism for maintaining order and respect within the court system. It underscores the importance of adherence to court rules and orders, as well as the principles of justice and fairness in legal proceedings.

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Inside the Maze – A Guide to Conservatorship and It’s Foundations

July 24, 2024

by admin Conservatorships

What Is Conservatorship?

Conservatorship is a special title that grants custodial duties or guardianship over one person to another. Though usually given to those who are considered incapable of making their own decisions, like the sick or elderly, it is also used in specific custody instances. Conservators must always act in the best interest of the conservatee, considering their personal preferences and wishes whenever possible. There are two types of conservatorship, conservatorship over person or estate. Conservatorship of a person pertains to making decisions regarding their care and welfare, personal necessities, and other important aspects. It is taking care of and watching over the welfare of another, making sure they are of sound body and mind. Conservatorship of the estate involves more financial responsibilities like managing income and assets or maintaining land and property.

What Are The Responsibilities Of Someone With Conservatorship?

The responsibilities of any conservator, no matter the type of conservatorship includes managing finances and assets, watching over and maintaining the wellbeing of the conservatee, keeping open communication with the court about the conservatee’s status, the actions taken by you to maintain the wellbeing of the conservatee, any changes in the circumstance of the conservatee, etc. If you have conservatorship of a person, more responsibilities may include housing, medical care, nutrition, clothing, and bathing. Conservatorship of a person can be over a minor in need of guardianship or over the elderly who can no longer take care of themselves. Conservatorship of the estate may include more responsibilities such as paying bills, managing income and assets, and making investment decisions.

How To Earn Conservatorship?

Conservatorship is a large responsibility, one that can only be awarded to you through a court process. It is not a responsibility you can take lightly, nor should you, were you to find yourself in such a position. If you need more resources about Conservatorship, check out this County Clerk Conservatorship Packet for more information! Conservatees are typically older individuals, those with mental disabilities or delays, or due to their age. Conservatorship is earned through a process of petitioning the court. You must submit a petition of conservatorship to the appropriate court, and give notice of service to any family members of the future conservatee or anyone else who may want to contest the conservatorship or petition themselves. When the petition has been officially filed, the court will appoint an evaluator who will determine the situation of the conservatee, what their living situation is like, how they handle taking care of their own daily responsibilities. The evaluator is an unbiased 3rd party who will form their own opinion on whether or not they think conservatorship is necessary. After the evaluator has learned the necessary information and forms their opinion, the court will have a scheduled hearing where you will present your case, including information on you, your relationship with the conservatee, how conservatorship may benefit the conservatee, etc. Family members may contest the conservatorship, but follow the factors set forth in Tennessee Code Annotated § 32-4-101. They may also petition themselves to be the conservator and must also supply the same information as you. After any and all petitions, and after the evaluator has given their opinion, the court will dismiss the parties’ and examine the case to make the best possible decision for the conservatee. The appointed conservator will have full legal authority over financial matters and personal matters of the conservatee. A conservator is required to periodically check in with the court about the status of the conservatee.

Conclusion

After the court proceeds, the conservator still has responsibilities with the court pertaining to the conservatee. Exact processes and legalities may differ by county or state regarding both conservatorship itself, as well as the court process to obtain it. Because conservatorship limits the conservatee in regards to personal choice, it is only applied in very serious cases when deemed absolutely necessary. Tennessee law encourages the use of less restrictive alternatives to conservatorship, such as powers of attorney, trusts, or supported decision-making agreements, whenever possible. The goal of conservatorship in Tennessee, as in other states, is to protect the best interests and well-being of individuals who are unable to manage their own affairs due to incapacity.