Play Nice and Fair, or Be Punished for Misconduct Toward The Other Parent

Tennessee’s Statutory Parental Rights or the “Bill of Rights” for parents under Tenn. Code Ann. §36-6-101(a)(3)(A) was amended effective July 1, 2014. It aims to provide certain “non-alienable rights” enforced through the court’s power over contempt.

What are the implications of these new laws to our clients who are parents? The most significant impact of the revised Statutory Parental Rights is that new duties and obligations have been imposed upon all parents. That means attorneys will have to advise their clients who are parents to play nice and fair, or be punished for misconduct toward the other parent.

We domestic lawyers are very familiar with the hostility that frequently lingers after a breakup of a relationship. Two adults upset with each other often let their emotions, bitterness and resentments spill over to how they treat each other over the children they share together. It is a sad truth that family lawyers, judges and mental health professionals have frequently seen parents who:

• refuse to allow their children to talk on the telephone with the non-possessory parent, or curtail their communication, because the non-possessory parent’s phone intrusion into their homes or lives is offensive to the possessory parent;
• criticize the other parent to the children and involve them in matters of litigation because they selfishly want and need the children to side with them and reject the other parent;
• refuse to inform the children’s whereabouts because they do not want the non-possessory parent to know about the possessory parent’s activities with the children;
• refuse to provide information about the children’s extracurricular activities so that they do not have to see the non-possessory parent at events, and cause the other parent to miss important moments in the children’s lives; and
• intentionally obstructing the other parent’s access to the children or access to information about the children because they know that it is upsetting to the other parent, or simply, to have more control.

This is just a sampling of parents not playing nice and fair with each other, and often children get caught in the middle of the conflict one parent has with the other. If you represent a divorced parent, you will probably hear them complain “What parental rights do I have?” when the possessory parent has majority control over the children.

The revised law under Tenn. Code Ann. §36-6-101(a)(3)(A) increased the power of the court to sanction bad behavior. Under the revised parental rights statute, parents now have mandates to proactively model a respectful relationship with the other parent so that their children are not exposed to harmful behavior that affects their best interests and well-being.

The new sections of the statutory parental rights under Tenn. Code Ann. §36-6-101(a)(3)(A) are highlighted below:

1. The right to unimpeded telephone conversations with the child at least twice a week at reasonable times and for reasonable durations. The parent exercising parenting time shall furnish the other parent with a telephone number where the child may be reached at the days and time specified in a parenting plan or other court order or, where days and times are not specified, at reasonable times;
2. The right to send mail to the child which the other parent shall not destroy, deface, open or censor. The parent exercising parenting time shall deliver all letters, packages and other material sent to the child by the other parent as soon as received and shall not interfere with their delivery in any way, unless otherwise provided by law or court order;
3. The right to receive notice and relevant information as soon as practicable but within twenty-four hours of any hospitalization, major illness or injury or death of the child. The parent exercising parenting time when such event occurs shall notify the other parent of the event and shall provide all relevant health care providers with the contact information for the other parent;
4. The right to receive directly from the child’s school any educational records customarily made available to parents. Upon request from one parent, the parent enrolling the child in school shall provide to the other parent as soon as available each academic year the name, address, telephone number and other contact information for the school. In the case of children who are being homeschooled, the parent providing the homeschooling shall advise the other parent of this fact along with the contact information of any sponsoring entity or other entity involved in the child’s education, including access to any individual student records or grades available online. The school or homeschooling entity shall be responsible, upon request, to provide to each parent records customarily made available to parents. The school may require a written request that includes a current mailing address and may further require payment of the reasonable costs of duplicating such records. These records include copies of the child’s report cards, attendance records, names of teachers, class schedules, and standardized test scores;
5. Unless otherwise provided by law, the right to receive copies of the child’s medical, health or other treatment records directly from the treating physician or healthcare provider. Upon request from one parent, the parent who has arranged for such treatment or health care shall provide to the other parent the name, address, telephone number and other contact information of the physician or healthcare provider. The keeper of the records may require a written request including a current mailing address and may further require payment of the reasonable costs of duplicating such records. No person who receives the mailing address of a requesting parent as a result of this requirement shall provide such address to the other parent or a third person;
6. The right to be free of unwarranted derogatory remarks made about such parent or such parent’s family by the other parent to or in the presence of the child;
7. The right to be given at least forty-eight hours’ notice, whenever possible, of all extracurricular school, athletic, church and other activities as to which parental participation or observation would be appropriate, and the opportunity to participate in or observe them. The parent who has enrolled the child in each such activity shall advise the other parent of the activity and provide contact information for the person responsible for its scheduling so that the other parent may make arrangements to participate or observe whenever possible, unless otherwise provided by law or court order;
8. 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 forty-eight hours, an itinerary which shall include the planned dates of departure and return, the intended destinations and mode of travel and telephone numbers. The parent traveling with the child or children shall provide this information to the other parent so as to give that parent reasonable notice; and
9. The right to access and participation in the child’s education on the same bases that are provided to all parents including the right of access to the child during lunch and other school activities; provided, that the participation or access is legal and reasonable; however, access must not interfere with the school’s day-to-day operations or with the child’s educational schedule.

The operative word in this amended statute is the word “shall.” It mandates certain new duties, responsibilities, and actions that must be performed by the possessory parent. Failure to do so could result in a contempt action being brought against your client. Despite the best efforts of our legislature to promote fairness, some parents will, however, still attempt to find some kind of loophole. For example, sending the children out-of-state alone, or with other friends or family, to get around having to provide an itinerary because the possessory parent did not “leave the state with the minor children.”[1]

Our courts have the authority to punish contempt on cases involving willful disobedience to any lawful order, rule, decree or command of the court.[2] One could be punished for failing to act, that is, omission to perform an act that it is yet in the power of the person to perform.[3] Alternatively, one could be punished for performance of a forbidden act.[4] One practice point is to include the standard parental rights in any Temporary Parenting Plan Order as well so that misconduct pending the trial can be punished.

The penalty for contempt is usually limited to a fine of $50 and/or 10 days of imprisonment for each contempt.[5] An exception is civil contempt that stems from performance of a forbidden act, which could result in the contemnor paying damages, including attorney fees.[6] For example, under the amended parental rights statute, the possessory parent is forbidden from interfering (ordered that they “shall not interfere”) with the delivery of letters, packages and other material sent to the child by the other parent. A possessory parent found in contempt of this provision of the amended statute may have to pay the non-possessory parent’s attorney fees for prosecuting the civil contempt action. The Tennessee Supreme Court has also, in the past, imposed punitive damages as part of the damages awarded to a prevailing party in a contempt case.[7] Another exception is when a marital dissolution agreement and parenting plan incorporated into the final decree of divorce provides for attorney fees in an action to enforce any provision of the agreement.[8]

Our Tennessee Supreme Court in Baker v. State[9] has defined the two forms of contempt — civil and criminal contempt — this way:

Civil contempt is remedial in character and is applied when a person refuses or fails to comply with a court order. A civil contempt action is brought to force compliance with the order and thereby secure private rights established by the order.  When a trial court orders imprisonment after finding civil contempt, the confinement is remedial and coercive in nature, designed to compel the contemnor to comply with the court’s order. Consequently, compliance with the order will result in the contemnor’s immediate release from confinement.  It has long been said that in a civil contempt case, the contemnor “carries the keys to his prison in his own pocket.”

Criminal contempt, by contrast, is designed “to preserve the power and vindicate the dignity and authority of the law and the court as an organ of society.” Sanctions for criminal contempt are generally both punitive and unconditional in nature, designed to punish past behavior, not to coerce directly compliance with a court order or influence future behavior. Therefore, when a court imposes a definite term of confinement for conduct constituting criminal contempt, the contemnor cannot shorten the term by agreeing not to continue in the behavior that resulted in his confinement.  “Such imprisonment operates not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.”[10]

Thus, civil contempt actions are brought when the contemnor parent can still perform to purge his or her contemptuous act. For example, the contemnor parent can give a telephone number, deliver the letter or present, or provide the children’s school or extracurricular information to purge their prior omission or failure to provide the information. Our Tennessee Supreme Court in Konvalinka v. Chattanooga-Hamilton Co. Hospital Authority[11] has laid out four elements to finding a person in civil contempt:

1. Lawful order;
2. Order is clear, specific and unambiguous;
3. Violation of order; and
4. Willful behavior.

Criminal contempt actions are brought when the contemptuous act has passed, is complete, and cannot be undone. For example, making derogatory remarks about the other parent to the children or in their presence about how “dishonest” or how “untrustworthy” or what “a loser” the other parent is.[12] The impact of the derogatory comment to the child at the time it was said cannot later be purged, that is, one cannot un-ring a bell once it is rung. Another example would be failure to provide a trip itinerary “which shall include the planned dates of departure and return, the intended destinations and mode of travel and telephone numbers” before leaving the state with the minor children for more than 48 hours.[13] Once the parent has left Tennessee with the children for more than 48 hours, they cannot later comply by providing an itinerary because the time-frame for providing the required information had passed.

Behavior has be “willful” for there to be a cause of action for civil or criminal contempt.[14] There are different requirements for prosecuting civil and criminal contempt actions that are beyond the scope of this article.[15] However, generally, there are different burdens of proof (preponderance of the evidence versus beyond a reasonable doubt);[16] notice requirements for criminal contempt actions;[17] and certain procedural rights and privileges afforded to defendants in criminal contempt actions.[18] In a criminal contempt action, there is a presumption of innocence and a right against self-incrimination.[19] Thus, no answer needs to be filed to the Petition and the defendant does not have to testify. There is a one-year Statute of Limitations for criminal contempt, which is 12 months from the date the offense was committed.[20] The same sequence of events can support both a criminal contempt and civil contempt action. However, the hearing needs to be bifurcated with the criminal contempt proceeding going first because of the constitutional rights afforded the defendant.[21]

A parent found guilty of more than one offense of criminal contempt can be required to serve consecutive or concurrent sentences depending on the severity of the offenses.[22]
Therefore, for divorces after July 1, 2014, lawyers have to be vigilant in counseling their clients about their observing the new requirements of the amended parental rights statute. For divorced parents with parenting plans entered after July 1, 2014, with the new statutory provisions, they can look forward to having “more” parental rights that are enforceable by the courts. The best thing for our divorced clients to do is always to be civil, play nice and play fair, to stay out of our courtrooms (and jail). This is not an easy challenge for some parents, and we will have to see if the amended parental rights statute and the associated possible sanctions will reduce conflict and promote a more congenial environment for children of divorced parents.

Notes

1. Tenn. Code Ann. §36-6-101(a)(3)(A)(viii) states: “… in the event the other parent leaves the state with the minor child or children for more than forty-eight hours …”; but see O’Rourke v. O’Rourke, 337 S.W. 3d 189, 193 (Tenn.Ct.App. 2009)(statutory parental rights modified by agreement to provide that an itinerary was required “in the event the minor child or children leave the Nashville area overnight” was never appealed and upheld in subsequent contempt lawsuit).
2. Tenn. Code Ann.  §§29-9-101 and 102(3).
3. Tenn. Code Ann.  §29-9-104.
4. Tenn. Code Ann.  §29-9-105.
5. Tenn. Code Ann.  §29-9-103.
6. Tenn. Code Ann.  §29-9-105; see Overnite Transportation Co. v. Teamsters Local Union No. 480, 172 S.W.3d 507 (Tenn.2005).
7. Headrick v. Carter, 897 S.W.2d 256, 261 (Tenn.1995).
8. O’Rourke v. O’Rourke, 337 S.W.3d 189, 195 (Tenn.Ct.App.2009).
9. Baker v. State, 417 S.W.3d 428 (Tenn.2013).
10. Baker, 417 S.W.3d at 436 (Tenn.2013)(internal citations omitted).
11. Konvalinka v. Chattanooga-Hamilton Co. Hospital Authority, 249 S.W.3d 346 (Tenn.2008).
12. Tenn. Code Ann.  §36-6-101(a)(3)(A)(vi).
13. Tenn. Code Ann.  §36-6-101(a)(3)(A)(viii).
14.  Black v. Blount, 938 S.W.2d 394 (Tenn.1996); In re Sneed, 302 S.W.3d 825 (Tenn.2010); see Tenn. Code Ann. §39-11-302(a) for definition of “intentional” conduct in criminal matters; see Konvalinka, 249 S.W.3d at 357 for civil definition of willful conduct (a person acts “willfully” when they know what they are doing and intends to do what they are doing).
15. See Baker v. State, 417 S.W.3d 428 (Tenn.2013) for a more descriptive outline of the rights and constitutional privileges applicable to criminal contempt actions, such as: notice requirements under Rule 42(b) of the Tennessee Rules of Criminal Procedure, presumption of innocence until proven guilty beyond a reasonable doubt, and right against self-incrimination.
16. Baker v. State, 417 SW.3d 428, 436 (Tenn.2013).
17. Long v. McAllister-Long, 221 S.W.3d 1, 13 (Tenn.Ct.App.2006); McLean v. McLean, 2010 WL 2160752, *5-6 (Tenn.Ct.App.2010); Sprague v. Sprauge, 2013 WL 3148278 (Tenn.Ct.App.2013).
18. Id.; see also, Crabtree v. Crabtree, 716 S.W.2d 923, 925 (Tenn.Ct.App.1986).
19. Baker v. State, 417 S.W.3d 428, 436 (Tenn.2013).
20. Tenn. Code Ann.  §40-35-111(e)(3); Tenn. Code Ann.. §40-2-102(a).
21. Tacker v. Davidson, 2008 WL 3066329, *5 (Tenn.Ct.App.2008)(citing McPherson v. McPherson, 2005 WL 3479630, *3-5 (Tenn.Ct.App.2005) and Freeman v. Freeman, 147 S.W.3d 234, 242-44 (Tenn.Ct.App.2003)).
22. Tenn. Code Ann. § 40-35-115(a); In re Sneed, 302 S.W.3d 825, 829 (Tenn.2010).

SIEW-LING SHEA is with the law firm of Rogers, Kamm & Shea in Nashville, and has been with the law firm since May 2001, first as a paralegal, then as an attorney. Her primary areas of practice are in family and probate law. Shea graduated from the Nashville School of Law in the top 10 percent of her class and is a member of the Honorable Society of Cooper’s Inn. Her undergraduate degree is from the University of Michigan, Ann Arbor, where she received a double major in communication and sociology. She is also a Rule 31 Listed Civil Mediator and trained in Collaborative Law.