May 2016 - Vol. 52, No. 5

A State of Confusion and a Need for Clarity

The Fallout from Culbertson I and II

In Tennessee, trial courts have a duty to protect the best interests of children.[1] As early as 1918, the Tennessee Supreme Court acknowledged that the state has a right “paramount to any parental or other claim[] to dispose of such children as their best interests require” and that “the legal rights of a parent are very gravely considered[] but are not enforced to the disadvantage of the child.”[2] Thus, in any proceeding requiring the court to make a custody determination, trial courts must make such determinations according to the best interests of the child.[3] This statutory requireme

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Confusion/Clarity

In the ongoing efforts to protect the children of a divorce, much conflict has arisen in the law regarding the handling of parents’ mental health records in their litigation.  Among lawyers and mental health professionals, two strong camps of thought exist on the topic:  The first is that the counseling and mental health records of a parent are sacrosanct and should be protected and held confidential at all costs, and the second is that the confidentiality of those records should be set aside when litigating the best interest of a child.

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News

TBA Earns Top Pro Bono Award for MLP

The Tennessee Bar Association on April 7 was awarded the Pro Bono Advocacy Award in Medical-Legal Partnership from the American Bar Association Standing Committee on Pro Bono and Public Service. The award was presented in recognition of the TBA’s outstanding leadership in promoting medical-legal partnerships to the legal community, engaging volunteer lawyers and identifying and building relationships within the medical profession, in part through the formation of a Medical-Legal Partnership Working Group.

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Passages

Retired Maryville attorney ROY D. CRAWFORD died March 20. He was 94. Following service in World War II, Crawford graduated from the University of Tennessee College of Law in 1948. He practiced in Maryville until 2000, when he retired at age 79. Crawford also represented Blount County in the Tennessee Senate from 1961 to 1966.

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This Mentor Relationship Withstood the Test of Time

The subject of mentor relationships between older and younger lawyers is a staple for bar associations. I was fortunate to have a number of experienced lawyers as mentors and role models when I started practicing. Now that I am a bit older myself, I enjoy interacting with younger lawyers. As I noted in an earlier column, we both have things to teach one another.

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QDRO and State/Local Government Pensions

On July 1, 2015, the General Assembly enacted new legislation that addressed the division of public employee pension plans during the course of divorce proceedings. Section 26-2-105(d)(1) of the Tenn.

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Surviving Spouses and Wrongful Death Claims

Tenn. Code Ann. §§ 20-5-106(a) and 20-5-110(a) tell us that the surviving spouse has the superior right to bring a wrongful death case.[1] Absent the surviving spouse’s affirmative waiver of that right or the circumstances discussed below, the spouse’s right trumps any right of the decedent’s executor, administrator or children to file a wrongful death action and control the litigation. But under what circumstances does a surviving spouse lose the right to bring and maintain the action?

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Remembering My Two Favorite Courthouse Square Lawyers

My friend Paul Summers is fond of saying, “There really are only two types of lawyers in Tennessee: Tall building lawyers and courthouse square lawyers.”

I’m a tall building lawyer. My office is on the 29th floor of a Memphis skyscraper. But my heart is with the courthouse square lawyers. I admire the small-town and country lawyers who counsel and help folks every day in their offices in the courthouse square.

I recently lost my two favorite courthouse square lawyers. They were Howard and Claude Swafford of Jasper, Tennessee.

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