It goes without saying that the past year has presented state governments with some of the most novel and divisive issues of recent memory. However, the Tennessee General Assembly still managed to pass some legislation relating to family law.
Below is, in our opinion, what changes matter most. This does not comprise all changes in 2021.
Protections for Victims of Domestic Abuse
Victims of domestic abuse, stalking, and/or sexual assault may seek an Order of Protection, which, if granted, allows certain protections for the victim. These include keeping the accused from possessing a firearm and limiting the ability of the accused to contact or be around the victim. After the passing of Public Chapter 60 and Public Chapter 293, which went into effect July 1, 2021, these protections have been expanded.
Prior to July 1, 2021, a victim of domestic abuse could only seek an Order of Protection lasting one year. Public Chapter 60 now allows for a victim, and their family, under certain circumstances to seek a lifetime order of protection against the abuser. These circumstances are when the abuser has been convicted of certain crimes, including assault, aggravated assault, kidnapping, false imprisonment, and others. Under the new law, the lifetime Order of Protection will continue until either the death of the victim or the abuser.
Public Chapter 293 also creates an additional protection for victims of domestic abuse. Specifically, victims of domestic abuse may seek to terminate residential leases early without the contractual or statutory penalties, given the victim complies with the notice requirements outlined in the statute.
Findings of Fact and Conclusions of Law in Child Custody Determinations
The Tennessee General Assembly made small change to T.C.A. § 36-6-101(a)(2)(A)(i) which may have a big impact. The statute was amended to add the following sentence:
Unless both parents have agreed to a custody arrangement and parenting plan, orders for custody arrangements must include written findings of fact and conclusions of law to support the basis for the order.
Over the past few decades, Chapter 6 of Title 36 has been modified with a clear shift toward equal parenting time, especially when agreed to by the parents. This most recent amendment reinforces this policy. In practice, the new addition to T.C.A. § 36-6-101 may make it more difficult for a court to limit a parent’s parenting time. This is because orders setting parenting time, when disputed, now clearly require the courts to make findings of fact. Findings of fact require evidence presented at a hearing.
This is important because during a divorce, there are many instances in which the Court may, upon the petition of a parent, severely limit parenting time without a hearing. This instances usually occur in the form of injunctive relief granted with limited or no notice to the adverse party. This new addition may be interpreted to require an evidentiary hearing to be conducted so that findings can be made before a Court limits a parent’s time.
Child Custody for Parents with Disabilities
T.C.A. § 36-6-106(e) was amended to clarify the extent to which a parent’s disability can be factored into the best interest of the child analysis. Specifically, the statute is amended to include the following language.
The disability of a parent alone shall not be considered for or against awarding custody to such party unless the disability impacts the parent’s ability to meet the needs of the child.
Factors Considered by Courts in Terminating Parental Rights
Arguably the most comprehensive change to the statutes relating to family law is the passing of Public Chapter 190. No doubt a response to the considerable appellate litigation going on in Tennessee regarding the issue, Public Chapter 190 outlines twenty factors that a Court must consider when deciding the best interest of a child in matters of termination of parental rights. Whether the inclusion of these factors will clarify when termination of parental rights is appropriate is yet to be seen.
The only change to child support made in the most recent legislative cycle relates to support brought under Title IV-D. Previously, the standard for modification of a child support order was different for orders brought under IV-D. Specifically, a parent seeking modification through IV-D only needed to prove a 7.5% variance in the obligation to increase or decrease the obligation. Normal child support orders required a 15% variance. The change now requires all modifications, regardless of whether it is an order under Title IV-D, to prove a 15% variance.
Thank you, Gil Buie, for contributing this blog post.