Phillips Law Blog
This is where we have our lawyers talk about what's on their mind. You will find helpful legal information, law news, and some rants about being a lawyer.

Adoptions E-mail

Montgomery County Adoptions

 

Michele Goguen wrote this article on adoptions in July of 2010. A very good run down of what it takes for an adoption.

"It’s important to hire an adoption attorney who knows adoption and family law. You want to choose someone you feel represents your best interests, as well as the best interests of your adopted child(ren).

Where to begin; the legal steps and timelines

There are two main legal steps in any adoption, both of which should be overseen with the help of an adoption attorney.

Terminating the parental rights in the birth parents
Establishing parental rights in the new parent or parents
An adoption may take anywhere from a few weeks to a few years, depending upon the specific circumstances. There are also several options as to how you can adopt:

Domestic adoption: adoptions in the United States
International adoption: adoptions from other countries, such as Korea, China, India, and more
Related person adoption: adoptions from a relative of the potential adoptive parent"

Her article can be found at Michele Goguen Article.

We handle adoptions at Phillips Law, PLLC.

 

The Tennessee Relocation Act

The Tennessee Relocation Statue at TCA 36-6-108 has become a very important statue for many Tennesseans with children that want to move out of the state.  In Montgomery County, we deal with this issue quite frequently due to the high number of military families in our area.  I have represented many soldiers and their families in relocation cases this past year.  Most of the issues were as a result of the soldier coming down on “orders” and being forced to locate to another state or country.  The permanent change of station creates a frequent issue for the judges in our county.

I have also represented several clients in Davidson County with relocation cases.  The two counties are very different in the way that they deal with the move of a family out of state.

The relocation statue has two different provisions that apply differently to parents wanting to relocate with their minor children.  The key is to look at two issues.  How much time the parents are spending with the children by practice.  And, how much time the parents are spending with the children by the parenting plan.

If you are planning to move out of Tennessee, you must understand the Relocation Statute.  Essentially, the idea is this:  If one of the parent desiring to relocate has more time with the child, they will probably be allowed to move, but a new parenting plan will probably be needed.  If both parents have equal time with the child or children, there will be a fight and the court will determine what is in the best interest of the children.  This “best interest test” will determine whether the child can relocate with the moving parent.

The statute reads as follows:

Tennessee Relocation Statute
Tenn. Code Ann. § 36-6-108
§ 36-6-108. Parental relocation
(a) If a parent who is spending intervals of time with a child desires to relocate outside the state or more than one hundred (100) miles from the other parent within the state, the relocating parent shall send a notice to the other parent at the other parent’s last known address by registered or certified mail. Unless excused by the court for exigent circumstances, the notice shall be mailed not later than sixty (60) days prior to the move. The notice shall contain the following:
(1) Statement of intent to move;
(2) Location of proposed new residence;
(3) Reasons for proposed relocation; and
(4) Statement that the other parent may file a petition in opposition to the move within thirty(30) days of receipt of the notice.
(b) Unless the parents can agree on a new visitation schedule, the relocating parent shall file a petition seeking to alter visitation. The court shall consider all relevant factors, including those factors enumerated within subsection (d). The court shall also consider the availability of alternative arrangements to foster and continue the child’s relationship with and access to the other parent. The court shall assess the costs of transporting the child for visitation and determine whether a deviation from the child support guidelines should be considered in light of all factors including, but not limited to, additional costs incurred for transporting the child for visitation.
(c) If the parents are actually spending substantially equal intervals of time with the child and the relocating parent seeks to move with the child, the other parent may, within thirty (30) days of receipt of notice, file a petition in opposition to removal of the child. No presumption in favor of or against the request to relocate with the child shall arise. The court shall determine whether or not to permit relocation of the child based upon the best interests of the child. The court shall consider all relevant factors including the following where applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply
with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care, education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preferences of older children should normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other person; and
(11) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child.
(d) If the parents are not actually spending substantially equal intervals of time with the child and the parent spending the greater amount of time with the child proposes to relocate with the child, the other parent may, within thirty (30) days of receipt of the notice, file a petition in opposition to removal of the child. The other parent may not attempt to relocate with the child unless expressly authorized to do so by the court pursuant to a change of custody or primary custodial responsibility. The parent spending the greater amount of time with the child shall be permitted to relocate with the child unless the court finds:
(1) The relocation does not have a reasonable purpose;
(2) The relocation would pose a threat of specific and serious harm to the child which outweighs the threat of harm to the child of a change of custody; or
(3) The parent’s motive for relocating with the child is vindictive in that it is intended to defeat or deter visitation rights of the non-custodial parent or the parent spending less time with the child.
Specific and serious harm to the child includes, but is not limited to, the following:
(1) If a parent wishes to take a child with a serious medical problem to an area where no adequate treatment is readily available;
(2) If a parent wishes to take a child with specific educational requirements to an area with no acceptable education facilities;
(3) If a parent wishes to relocate and take up residence with a person with a history of child or domestic abuse or who is currently abusing alcohol or other drugs;
(4) If the child relies on the parent not relocating who provides emotional support, nurturing and development such that removal would result in severe emotional detriment to the child;
(5) If the custodial parent is emotionally disturbed or dependent such that the custodial parent is not capable of adequately parenting the child in the absence of support systems currently in place
in this state, and such support system is not available at the proposed relocation site; or
(6) If the proposed relocation is to a foreign country whose public policy does not normally
enforce the visitation rights of non-custodial parents, which does not have an adequately functioning
legal system or which otherwise presents a substantial risk of specific and serious harm to the child.
(e) If the court finds one (1) or more of the grounds designated in subsection (d), the court shall
determine whether or not to permit relocation of the child based on the best interest of the child. If
the court finds it is not in the best interests of the child to relocate as defined herein, but the parent
with whom the child resides the majority of the time elects to relocate, the court shall make a
custody determination and shall consider all relevant factors including the following where
applicable:
(1) The extent to which visitation rights have been allowed and exercised;
(2) Whether the primary residential parent, once out of the jurisdiction, is likely to comply
with any new visitation arrangement;
(3) The love, affection and emotional ties existing between the parents and child;
(4) The disposition of the parents to provide the child with food, clothing, medical care,
education and other necessary care and the degree to which a parent has been the primary caregiver;
(5) The importance of continuity in the child’s life and the length of time the child has lived in
a stable, satisfactory environment;
(6) The stability of the family unit of the parents;
(7) The mental and physical health of the parents;
(8) The home, school and community record of the child;
(9) The reasonable preference of the child if twelve (12) years of age or older. The court may
hear the preference of a younger child upon request. The preferences of older children should
normally be given greater weight than those of younger children;
(10) Evidence of physical or emotional abuse to the child, to the other parent or to any other
person; and
(11) The character and behavior of any other person who resides in or frequents the home of a
parent and such person’s interactions with the child.
The court shall consider the availability of alternative arrangements to foster and continue the
child’s relationship with and access to the other parent. The court shall assess the costs of
transporting the child for visitation, and determine whether a deviation from the child support
guidelines should be considered in light of all factors including, but not limited to, additional costs
incurred for transporting the child for visitation.
(f) Nothing in this section shall prohibit either parent from petitioning the court at any time to
address issues, (such as, but not limited to visitation), other than a change of custody related to the
move. In the event no petition in opposition to a proposed relocation is filed within thirty (30) days
of receipt of the notice, the parent proposing to relocate with the child shall be permitted to do so.
(g) It is the legislative intent that the gender of the parent who seeks to relocate for the reason of
career, educational, professional, or job opportunities, or otherwise, shall not be a factor in favor or
against the relocation of such parent with the child.

 

Felony? Misdemeanor? Difference?

 

As with all jurisdictions, states and federal, Tennessee distinguishes between crimes based on the severity of an offense. For instance, a simple possession of marijuana has an entirely different range of punishments from a first degree murder. The easiest way to break down the severity, and therefore punishment, is to look at whether the offense committed is categorized as a “felony” or “misdemeanor.”

Misdemeanor is generally defined as, “a crime less serious than a felony.” This definition begs the question “What is a felony?” Unfortunately, the definition for felony is not too helpful. Felony is defined as “a crime graver than a misdemeanor” or “a serious crime.”  Now let me break these cyclical definitions down to more understandable and user-friendly meanings.

In Tennessee a misdemeanor is punishable by a fine, jail time or both. The maximum amount of jail time on any misdemeanor is 11 months and 29 days.  The maximum penalty on a misdemeanor is $2,500.00. Misdemeanors are categorized into three classes: Class A misdemeanors, Class B misdemeanors and Class C misdemeanors. The severity of penalties increases from C to A class misdemeanors.   For instance, the maximum penalty for a Class C misdemeanor is jail time not to exceed 30 days, a fine not to exceed $50, or both.  The maximum penalty for a Class B misdemeanor is not greater than six (6) months in jail, a penalty not to exceed $500, or both.

Felonies are also characterized into classes depending on the severity of the offense. There are five classes in which felonies can be characterized.  The classes range from Class E to Class A. As with misdemeanors, the penalty increases from Class E to Class A.  The minimum punishment for a felony is a year (1) in jail. Unlike a misdemeanor, a jury must assess the fine in a felony case.  The punishment range for felonies tends to vary more than misdemeanors. The primary factor affecting the sentence range is prior criminal history.  I should also mention that the most heinous and serious offenses may be deemed Capital Crimes and result in life imprisonment or death as punishment.

Hopefully this brief rundown has been enlightening.  Remember, this information does not constitute legal advice nor does it act as a substitute for hiring an attorney. Thank you.