GETTING THE NEW LAWS by Miles Mason Sr.
From the Chair by Greg McMillan
Meet the Section Vice-Chair…Marlene Moses
With the Internet, finding and downloading new laws are easy. In this article, we will discuss and include some of the new laws and how to find them. Many of the public chapters are included herein with references to the scanned documents found on the web. (The language contained herein were re-typed by staff, so no warranties are made with respect to absolute typing accuracy.) Further, if you want an e-mail of this article, which includes the public chapters’ text herein, please e-mail Miles Mason at mmason@cronemason.com, or you can find it at www.tba.org/sections on the Family Law section webpage.
1. CUMULATIVE INDEX AND HOME PAGE. The Internet page address for the home page with links to public chapters and the cumulative index listing all statutes amended is: http://www.state.tn.us/sos/acts/acts.htm.
2. CHAPTER NO. 885. Additional parental rights. See: http://www.state.tn.us/sos/acts/101pub/pc885.pdf. Part of the public chapter reads:
SECTION 1. Tennessee Code Annotated, Section 36-6-101(a)(3), is amended by deleting the word “and” after the punctuation “;” at the end of sub-item (E); by deleting the punctuation “.” at the end of sub-item (F); and by adding the following after sub-item (F):
(G) The right to be given at least forty-eight (48) hours notice, whenever possible, of all extra-curricular activities, and the opportunity to participate or observe, including, but not limited to, the following:
(i) School activities;
(ii) Athletic activities;
(iii) Church activities; and
(iv) Other activities as to which parental participation or observation would be appropriate.
(H) The right to receive from the other parent, in the event the other parent leaves the state with the minor child or children for more than two (2) days, an itinerary including telephone numbers for use in the event of an emergency; and
(I) The right of access and participation in education, including the right of access to the minor child or children for lunch and other activities, on the same basis that is provided to all parents, provided the participation or access is reasonable and does not interfere with day-to-day operations or with the child’s educational performance.
SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.
PASSED: May 25, 2000
3. CHAPTER NO. 909.
Child support centralized collection.
See: http://www.state.tn.us/sos/acts/101pub/pc909.pdf.
4. CHAPTER NO. 922. Many provisions, including scientific testing and parentage, and child support. See: http://www.state.tn.us/sos/acts/101pub/pc922.pdf.
5. CHAPTER NO. 683. Custody and wrongful death of other parent. See: http://www.state.tn.us/sos/acts/101pub/pc683.pdf.
6. CHAPTER NO. 638. Protective orders. See: http://www.state.tn.us/sos/acts/101pub/pc638.pdf. Part of the public chapter reads:
SECTION 1. Tennessee Code Annotated, Section 36-3-609, is amended by deleting the second sentence and by substituting instead the following:
If the respondent is a resident of Tennessee, then the officer serving the order of protection shall read the order to the respondent; however, if the respondent is not a resident of Tennessee, then the order of protection shall be served upon the respondent by mail in the manner as set forth in §§ 20-2-215 and 20-2-216.
SECTION 4. This act shall take effect upon becoming a law, the public welfare requiring it.
PASSED: April 3, 2000
7. CHAPTER NO. 713. Property division factors. See: http://www.state.tn.us/sos/acts/101pub/pc713.pdf. Most of the public chapter reads:
SECTION 1. Tennessee Code Annotated, Section 36-4-121(a)(1), is amended by deleting the words and punctuation “separate support and maintenance,” and by substituting instead the words and punctuation “legal separation,”.
SECTION 2. Tennessee Code Annotated, Section 36-4-121(a)(2), is amended by redesignating the existing subdivision as subdivision (a)(3), and by adding the following as new subdivision (a)(2):
(a)(2) In all actions for legal separation, the court, in its discretion, may equitably divide, distribute, or assign the marital property in whole or in part, or reserve the division or assignment of marital property until a later time. If the court makes a final distribution of marital property at the time of the decree of legal separation, any after-acquired property is separate property.
SECTION 3. Tennessee Code Annotated, Section 36-4-121(b)(1)(A), is amended by deleting the subdivision in its entirety and by substituting instead the following:
(b)(1)(A) “Marital property” means 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 or up to the date of the legal separation hearing unless equity would require another valuation date and owned by either or both spouses as of the date of filing of a complaint for divorce or complaint for legal separation, 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, or the date of legal separation hearing unless equity would require another valuation date, and valued as of a date as near as reasonably possible to the final divorce hearing date or the date of the legal separation hearing.
SECTION 4. Tennessee Code Annotated, Section 36-4-121(b)(1)(B), is amended by deleting all language after the words and figures “subdivision (b)(2)” and by substituting instead the following:
if each party substantially contributed to its preservation and appreciation, and the value of vested and unvested pension, vested and unvested stock option rights, retirement or other fringe benefit rights relating to employment that accrued during the period of the marriage.
SECTION 5. Tennessee Code Annotated, Section 36-4-121(b)(1)(C), is amended by redesignating the existing subdivision as (b)(1)(D), by redesignating existing subdivision (b)(1)(D) as (b)(1)(E), and by adding the following as a new subdivision (b)(1)(C):
(b)(1)(C) “Marital property” includes recovery in personal injury, workers’ compensation, social security disability actions, and other similar actions for the following: wages lost during the marriage, reimbursement for medical bills incurred and paid with marital property, and property damage to marital property.
SECTION 6. Tennessee Code Annotated, Section 36-4-121(b)(1)(E), as redesignated in Section 5, is amended by deleting the words and punctuation “upon divorce and for no other purpose; and” in the existing subdivision and by substituting instead the following:
upon divorce or legal separation and for no other purpose; and assets distributed as marital property will not be considered as income for child support or alimony purposes, except to the extent the asset will create additional income after the division.
SECTION 7. Tennessee Code Annotated, Section 36-4-121(b)(2), is amended by deleting the word “and” at the end of subdivision (C), changing the period at the end of subdivision (D) to a semicolon, and by adding the following new subdivisions:
(E) Pain and suffering awards, victim of crime compensation awards, future medical expenses, and future lost wages; and
(F) Property acquired by a spouse after an Order of Legal Separation where the court has made a final disposition of property.
SECTION 8. Tennessee Code Annotated, Section 36-4-121(c)(5), is amended by inserting the word “depreciation” between the word and punctuation “appreciation,” and the words ”or dissipation".
SECTION 9. Tennessee Code Annotated, Section 36-4-121(c)(9) and (c)(10), are amended by deleting the subdivisions in their entirety and by substituting instead the following subdivisions (c)(9), (c)(10), and (c)(11):
(c)(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;
(c)(10) The amount of social security benefits available to each spouse; and
(c)(11) Such other factors as are necessary to consider the equities between the parties.
SECTION 10. This act shall take effect upon becoming a law, the public welfare requiring it.
PASSED: May 4, 2000
8. CHAPTER NO. 736. Guardian ad litem. See: http://www.state.tn.us/sos/acts/101pub/pc736.pdf. Most of the public chapter reads:
SECTION 1. Tennessee Code Annotated, Section 36-4-132, is amended by adding the following as a new subsection to be appropriately designated:
( ) Any guardian ad litem appointed by the court pursuant to this section shall be presumed to be acting in good faith and in so doing shall be immune from any liability that might otherwise be incurred while acting within the scope of such appointment. Such immunity shall apply in all proceedings in which such guardian ad litem may act.
SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.
PASSED: May 8, 2000
9. CHAPTER NO. 751. Change to medical record parental right. See: http://www.state.tn.us/sos/acts/101pub/pc751.pdf. Most of the public chapter reads:
SECTION 1. Tennessee Code Annotated, 36-6-101(a)(3)(E), is amended by deleting that sub-item in its entirety and by substituting instead the following:
(E) Unless otherwise provided by law, the right to receive copies of the child’s medical, health or other treatment records directly from the physician or health care provider who provided such treatment or health care upon written request which contains a current mailing address and upon payment of reasonable costs of duplication; provided, that no person who receives the mailing address of a parent as a result of this requirement shall provide such address to the other parent or a third person; and
SECTION 2. This act shall take effect upon becoming a law, the public welfare requiring it.
PASSED: May 4, 2000
10. CHAPTER NO. 781. Reading orders of protection to respondent and reporting to NCIC. See: http://www.state.tn.us/sos/acts/101pub/pc781.pdf.
11. CHAPTER NO. 891. Another new grandparent visitation right law. See: http://www.state.tn.us/sos/acts/101pub/pc891.pdf. Most of the public chapter reads:
SECTION 1. Tennessee Code Annotated, Section 36-6-306, is amended by deleting that section in its entirety and by substituting instead the following:
(a) Any of the following circumstances, when presented in a petition for grandparent visitation to a court of competent jurisdiction, necessitates a hearing if such grandparent visitation is opposed by the custodial parent or parents:
(1) The father or mother of an unmarried minor child is deceased;
(2) The child’s father and mother are divorced or legally separated;
(3) The child’s father or mother has been missing for not less than six (6) months; or
(4) The court of another state has ordered grandparent visitation.
(b)(1) In considering a petition for grandparent visitation, the court shall first determine the presence of a danger of substantial harm to the child. Such finding of substantial harm may be based upon cessation of the relationship between an unmarried minor child and the child’s grandparent if the court determines, upon proper proof, that:
(A) the child had such a significant existing relationship with the grandparent that loss of the relationship is likely to occasion severe emotional harm to the child;
(B) the grandparent functioned as primary caregiver such that cessation of the relationship could interrupt provision of the daily needs of the child and thus occasion physical or emotional harm; or
(C) the child had a significant existing relationship with the grandparent and loss of the relationship presents the danger of other direct and substantial harm to the child.
(2) For purposes of this section, a grandparent shall be deemed to have a significant existing relationship with a grandchild if:
(A) The child resided with the grandparent for at least six (6) consecutive months;
(B) The grandparent was a full-time caretaker of the child for a period of not less than six (6) consecutive months; or
(C) 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.
(c) Upon an initial finding of danger of substantial harm to the child, the court shall then determine whether grandparent visitation would be in the best interests of the child based upon the factors in § 36-6-307. Upon such determination, reasonable visitation may be ordered.
(d)(1) Notwithstanding the provisions of Section 36-1-121, if a relative or stepparent adopts a child, the provisions of this section apply.
(2) If a person other than a relative or a stepparent adopts a child, any visitation rights granted pursuant to this section before the adoption of the child shall automatically end upon such adoption.
SECTION 2. Tennessee Code Annotated, Section 36-6-307, is amended by deleting the section in its entirety and by substituting instead the following:
In determining the best interests of the child under § 36-6-306, the court shall consider all pertinent matters, including, but not necessarily limited to, the following:
(1) The length and quality of the prior relationship between the child and the grandparent and the role performed by the grandparent;
(2) The existing emotional ties of the child to the grandparent;
(3) The preference of the child if the child is determined to be of sufficient maturity to express a preference;
(4) The effect of hostility between the grandparent and the parent of the child manifested before the child, and the willingness of the grandparent, except in case of abuse, to encourage a close relationship between the child and the parent(s) or guardian(s) of the child;
(5) The good faith of the grandparent in filing the petition;
(6) If the parents are divorced or separated, the time-sharing arrangement that exists between the parents with respect to the child; and
(7) If one (1) parent is deceased or missing, the fact that the grandparents requesting visitation are the parents of the deceased or missing person.
SECTION 3. If any provision of this act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to that end the provisions of this act are declared to be severable.
SECTION 4. This act shall take effect upon becoming a law, the public welfare requiring it.
PASSED: June 1, 2000
12. CHAPTER NO. 889. This is the big new parenting plan law (14 pages). Becomes effective January 1, 2001. See: http://www.state.tn.us/sos/acts/101pub/pc889.pdf. Parenting Plan Forms.
From the Chair by Greg McMillan
First, thanks to all of you who are Family Law Section members. Even though the section hasn’t been exactly visible or active, you’ve all hung in there anyway. It is the hope of this year’s officers that we can revitalize the section. In order to do that, however, we’re going to need your help.
There are several projects the Family Law Section has been asked to accomplish this bar year. Marlene Eskind Moses will be working on the section’s CLE program. In light of the Parenting Plan legislation which takes effect January 1, 2001, the section has been asked to provide a day-long seminar on the statute in several locations throughout the state. Marlene will be working with section members in each grand division of the state to standardize the materials and obtain speakers. If you are interested in helping produce or otherwise assist in the creation and conducting of this program, please call her. Miles Mason has produced this newsletter and intends to publish three more this bar year. Anyone who is interested in suggesting topics to be covered, writing an article, providing practice tips, or helping assemble future newsletters is encouraged to contact him. Finally, the section has been asked to create a course for inclusion in the Tennessee Bar Association’s on-line university. Anyone with ideas for course subject(s) or who is interested in participating in this special project should contact me.
Over the course of the next year, I and the other officers hope to hear from the members of the section as to what the section can do for them and what they can offer the section as well. v
Greg McMillan, Chair, Knoxville, Sheppeard & Swanson, PLC; graduated from the University of Tennessee College of Law in 1992; member of the Knoxville, Tennessee, and American Bar Associations Family Law Sections.
Meet the Section Vice-Chair …Marlene Moses
Marlene Eskind Moses graduated from Tulane University with a Bachelor of Arts and a Masters of Social Work. She has been in private practice working mainly in the areas of family law, mediation and arbitration in family law, and probate law having graduated from the Nashville School of Law in 1980. She is a principal in the association of Eisenstein, Moses, & Mossman. She has been an active member of the Tennessee Bar Association. She was an original founder of the Tennessee Lawyers Concerned for Lawyers Program and she served on its Executive Committee until withdrawing in 1992 when she was appointed to be a hearing panel member for the Board of Professional Responsibility for which she served six years. She served as First Vice President of the Nashville Bar Association and Vice President of the Family Law Section of the Tennessee Trial Lawyers. She is also a member of the American Bar Association, Tennessee Lawyers Association for Women, and Lawyers Association for Women in which she served as President. She is a member of the Harry Phillips American Inns of Court and was an instructor of family law at Southeastern Paralegal Institute. She is a co-author of the probate section dealing with guardianships and conservatorships in Tennessee Practice. She is a fellow in The American Academy of Matrimonial Lawyers, being one of three lawyers in Nashville to be a member and one of nine in the state of Tennessee. She is also a fellow in the International Academy of Matrimonial Lawyers. Ms. Moses is a Rule 31 Mediator in family and civil cases as well as being certified mediator and arbitrator by the American Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has certified Ms. Moses as a Family Law Trial Specialist and she serves on their Board. Ms. Moses is the first attorney in the State of Tennessee to be certified as a Family Law Specialist.