Family Law Section March 1997 Newsletter Articles

 

Legislation Passes Custody Pilot Program in Four Counties by Don R. Ash, Circuit Judge, Division III

“PARTNERS” Project by Amy Amundsen

The TBA Family Law Code Commission by Mary Frances Lyle, chair

Professor Janet Richards asked me to describe how this pilot program came about. In the movie, The Blues Brothers, Jake and Elwood Blues fight to save the orphanage in which they were raised. During this process, I too, have felt somewhat like Jake and Elwood. In early 1995, Mary Frances Lyle contacted me to ask if I would speak to the legislature against a bill that would have provided a presumption of joint custody in all divorce cases. I did that, and had the opportunity to meet Representative Bob Patton. The bill was subsequently defeated and, to be quite honest, it brought to me new awareness of a system in our state that was more slanted toward good adversarial tactics rather than looking at what is best for children. That summer, Vanderbilt University provided me with two interns to help me with whatever project I deemed necessary. We found a statute in the state of Washington we thought was refreshing and redrafted that legislation to make it applicable to Tennessee with some rather substantial changes in the area of child custody.
I have been working on my master’s degree in Judicial Studies at the University of Nevada. One requirement for graduation is to write a thesis. It seemed logical to me to write why this draft legislation should be adopted in Tennessee. The University of Memphis law school agreed to print the article. In fact, it will be published this summer. In 1997, I was asked once again to speak to the joint committee on child custody to address this presumption of joint custody and, after some discussion, the subcommittee became aware of my draft legislation which I subsequently submitted to them. Shortly thereafter, the bill was filed and with the support of many people across the state of Tennessee, including some fine legislators, a pilot program was adopted.
The Tennessee Bar Association, through its Family Law Code Commission, reviewed this legislation and with a few changes, adopted it. I hope this legislation will have the opportunity to positively affect divorcing parents and their children for many years to come. I have also been contacted by many different attorneys asking exactly what this legislation does. I think it is rather simple. The first part of the legislation mandates a four hour seminar for both parents to attend individually which will provide them with a number of alternatives. The program will discuss marriage counseling if the couple wants to salvage their marriage, mediation and its process and the judicial process. The most important aspect of this seminar will be to try to defuse the parties’ anger and refocus their priority on helping the children cope with their parents getting a divorce. Obviously, where there are instances of drug abuse or domestic violence, there would be additional specialized counseling for these people.
The next aspect of this legislation would provide that if the parties proceed on irreconcilable differences and they have children who are minors, they would provide a parenting plan. This would be a uniform document across the state which is simple to fill out. Instead of using the terms “custody” or “joint custody” there would be residential provisions, decision-making provisions and an element of continued mediation in the event that other differences arise. If the parties could not reach an agreement within 120 days, then every divorce case, unless a motion is filed to relieve them from such an obligation, would go to a family mediator. During mediation, each side would present a proposed parenting plan and the mediator would try to work with the individuals to come to terms about how they are going to continue as parents of their children. It has been my experience on the bench that in most cases where people agree to a settlement, they are more willing to buy into its provisions than if it is court-ordered. In the event that the parties cannot agree to a parenting plan through a family mediator, the matter would go to trial, just as any divorce would. The only difference would be that each side would submit a proposed parenting plan and the judge would try to construct his or her own parenting plan based on what would be in the best interest of the minor child or children. This parenting plan would allow the parties to choose one of three mediators to help them resolve further disputes. This section could be waived in the event of physical or emotional harm to the child or children.
I am convinced the adversary system for domestic relations cases are damaging families across the state. Hopefully, this proposed plan would allow attorneys to be counselors as well as advocates. In my opinion, it will not resolve all contested cases, but instead it will give an alternative to parents and try to focus on God’s most important gift to all of us, our children.

Tennessee has the third highest divorce rate in the country. One way to curb the number of divorces is to educate our youth. The Family Law Section of the American Bar Association has designed a program to teach high school students the necessary communication and conflict resolution skills that are required to salvage a marriage. The course, which is entitled “PARTNERS” (Preventing And Reducing Tension New Education for Responsible Spouses) aims at improving the quality of family life as well as reducing the number of divorces.
“PARTNERS” is a ten class period course; five videotape lessons and five classroom lectures by local divorce attorneys. The topics include premarital expectations, family income and budget preparation, child care, custody, support issues and domestic violence. The curriculum objective of “PARTNERS” is three-fold. First, to provide young people with practical information to assist them in making informed decisions about their life partners and in understanding the financial, emotional and other demands of a marriage. Secondly, to advice the students of the legal implication of dissolving a marriage and explain the impact that divorces have on children and lastly, to teach these young adults the essential elements of marriage, communication, negotiations and interaction, with an emphasis on reducing tension, stress and any negative feelings harbored against the other partner.
In 1996, Tennessee became the eleventh state to implement this course in some of its high schools. The program has expanded in Shelby County and now impacts over 300 students per semester. The number of volunteer domestic relations lawyers who teach the course has doubled since 1996. If you and/or your high school is interested in adding this course to your high school curriculum, please contact Glenda Sharp of the American Bar Association, Family Law Section at (312)988-5584.

The TBA Family Law Section re-instituted the Family Law Code Commission in 1996 at the request of Amy Amundsen who was chair of the Family Law Section at that time. The Commission has met numerous times during the past year discussing issues related to child support, parentage and custody.
The Commission drafted several pieces of legislation which were successfully lobbied through the 1997 Tennessee General Assembly by TBA Legislative Counsel, Steve Cobb. The bills drafted by the Commission are the Parentage Act, repeal of the tender years statute and the Parental Access Bill.
The Commission was also very involved in drafting the final version of the Model Custody Project Act. This is a very comprehensive piece of legislation which will establish model projects in several counties throughout the state to involve parties in custody cases in mediation in an effort to resolve custody and support issues prior to litigation. It calls for the parents to attempt to arrive at parenting plans to resolve issues of residential time with each parent and decision-making.
The Commission is in the process of determining the issues to take up next with an eye toward further legislation to update and improve family law legislation in Tennessee. Alimony guidelines, property division and domestic violence are possibilities.