2018 TN Legislative Update: Child Marriage, Grandparent Visitation, Orders of Protection, Plus More
Immediately apparent from this 2018 legislative update is how busy the Tennessee Assembly has been with revising family law statutes. A series of Public Chapters were signed into law by Governor Haslam earlier this year. The new legislation impacts child marriage, grandparent visitation, orders of protection, parental responsibility for a child’s health insurance coverage, testimony from teachers and counselors, and even a new affirmative defense for abusive civil actions. Wow! Take a quick look at each of the legislative changes, all of which are already in effect.
Transferring Mobile Phone Numbers in Domestic Violence Cases
Enhancing the victim’s ability to continue using a mobile phone number by order of court, new law addresses another aspect of domestic abuse – loss of victim privacy and control over personal communications.
The first legislation on our family law list followed passage of S.B. 1796. Public Chapter 729 addresses yet another dark aspect of domestic abuse – loss of victim privacy and control over personal communications. We are talking about a new law enhancing the victim’s ability to continue using his or her mobile phone number by order of court.
Order to Transfer Cell Phone Number to Petitioner
A petitioner seeking an order of protection can now ask the judge to order the wireless telephone service provider (AT&T or Verizon, for example) to transfer rights to a mobile phone number and responsibility for payment to that petitioner. Ordered separately, control of the cell number and account are wrestled away from defendant’s reach and interference.
To effectuate this change, P.C. 729 added T.C.A. § 36-3-627. This statutory provision was added to the law delineating orders of protection in domestic abuse cases. The new provision expands the scope of the court’s protective orders. More specifically, by permitting the court to enter a separate order directing the wireless telephone service provider to transfer a mobile phone number to the protected person.
Under T.C.A. § 36-3-627(a), after requesting the mobile phone transfer, the petitioner must prove that he or she:
(1) ls not the account holder; and
(2) Proves by a preponderance of the evidence that the petitioner and any minor children in the petitioner’s care are the primary users of the wireless telephone numbers that will be ordered transferred by a court under this subsection (a).
Wireless Telephone Service Provider Protected from Liability
Absent gross negligence, the wireless telephone service provider is exculpated from subsequent civil, criminal, and administrative (government) liability for complying with the court’s order and transferring the phone number, account, and billing responsibility away from the account holder (the defendant) to the petitioner.
There are a few legitimate reasons for why the service provider would be excused from its noncompliance with the court’s separate order:
- The account was already terminated;
- Differences in network technology prevent device functionality on the network; or
- Service is unavailable because of geographic or other network limitations.
P.C. 729 also amended T.C.A. § 36-3-606(a)(12). Here’s the new statutory language:
(a) A protection order granted under this part to protect the petitioner from domestic abuse, stalking or sexual assault may include, but is not limited to:
…
(12) Ordering a wireless service provider to transfer the billing responsibility for and rights to the wireless telephone number or numbers to a petitioner pursuant to § 36-3-621.
This provision speaks to the continuing need for meaningful real-life protections to victims of domestic violence in Tennessee. When P.C. 729 was signed into law April 18, 2018, it became effective immediately.
Courts with Jurisdiction to Hear Grandparent Visitation Cases
New law should ease access for grandparents with more courts able to hear and decide their grandchild visitation petitions.
When S.B. 2002 was passed, Public Chapter 734 amended T.C.A. § 36-6-306(a) by increasing the available courts that exercise jurisdiction over grandparent visitation cases. In these proceedings, the grandparent’s visitation access to the grandchild has allegedly been opposed or severely reduced by child’s parent or custodian.
When presented with a petition for grandparent visitation, the following courts with domestic relations jurisdiction may hear the case:
- Circuit;
- Chancery;
- General sessions courts with domestic relations jurisdiction;
- “[O]ther courts with domestic relations jurisdiction”; and
- County juvenile court with a child born out of wedlock.
[Emphasis indicates new statutory language.]
This should ease access for grandparents with more courts able to hear and decide their grandchild visitation petitions. A small change, but a meaningful one that may help many elderly individuals proceed less expensively and more locally. Effective April 18, 2018.
Health Insurance Relief from Parent’s Child Support Obligation
Next on our list is Public Chapter 742 which made a modest change to Tennessee’s child support law. This is an express limitation on the court’s authority to order a parent to acquire or maintain health insurance coverage for a minor child.
Essentially, P.C. 742 codifies an obvious reality for many low income families. That it defies reason for the court to order a parent, who cannot afford health insurance for a child, to somehow pay for what he or she cannot pay for. Regardless, now there is a specific provision to point to when parents seek relief from the obligation to provide what turns out to be unaffordable, unreasonable health insurance coverage.
New child support law may give parents relief from obligation to provide children with what turns out to be unaffordable, unreasonable health insurance coverage.
P.C. 742 amended T.C.A. § 36-5-101(h)(1) by deleting the old statutory language and replacing it with the following:
(h)(1) The court may direct the acquisition or maintenance of health insurance covering each child of the marriage and may order either party to pay all, or each party to pay a pro rata share of, the healthcare costs not paid by insurance proceeds if reasonable and affordable health insurance is available.
[Emphasis added.]
Under the new provision, if neither parent has access to insurance that is reasonably affordable, then covering the child’s health insurance should not be ordered. We’ll wait and see how courts parse out this language over time. But married or unmarried, it is likely the same limitation on a parent’s responsibility to provide healthcare coverage for a child will apply. The amended child support provision went into effect on July 1, 2018.
Educators as Witnesses in Domestic Disputes
With the Assembly passing S.B. 2549, its Public Chapter 747 made an important change to Title 24 on evidence and witnesses and Title 49 on education. P.C. 747 added a new statutory provision regarding witness testimony from teachers and school counselors in civil domestic disputes.
Effective April 18, 2018, it is more challenging to call a teacher or school counselor as a witness to testify about a particular student in a family law case. The court may still order the educator to appear and provide witness testimony, but only after the judge has determined the “educator’s attendance is necessary to ensure fairness in the hearing, mediation, arbitration, trial, or other similar matter.” T.C.A. § 24-2-109.
Who is an educator for purposes of T.C.A. § 24-1-109? An educator is a teacher with an active license or school counselor. They must be currently employed at a public or private elementary or secondary school. If the educator is not currently employed at a school, then the lesser threshold would apply in requiring him or her to provide witness testimony in the domestic relations case.
The statute means to prevent over-burdening schools and educators with litigation-related absenteeism. When called away from their school duties to testify as witnesses in a civil domestic matter, their testimony must truly be necessary to the proceedings. What happens when the court hearing is scheduled during summer vacation when schools are closed? Given the school is not disrupted, appearance could be allowed under the lesser standard.
Affirmative Defense for Abusive Civil Actions
Well, this is a little different because it’s directed at parties who have either a current relationship or a former relationship and is not restricted to family law cases. Public Chapter 872 added a new chapter for abusive civil actions to Title 29’s remedies and special proceedings. That would be Chapter 41.
With passage of H.B. 872, the Assembly gave Tennesseans a new affirmative defense. One that can be raised in any civil action involving divorced spouses or their children, cohabitants, former sexual partners, family members, and others. Establishing the requisite relationship between the parties is crucial.
For the affirmative defense to apply, T.C.A. § 29-41-101(5) requires one of the following civil action party relationships:
(A) Adults who are current or former spouses;
(B) Adults who live together or who have lived together;
(C) Adults who are dating or who have dated or who have or had a sexual relationship. As used in this subdivision (5)(C), “dating” and “dated” do not include fraternization between two (2) individuals in a business or social context;
(D) Adults related by blood or adoption;
(E) Adults who are related or were formerly related by marriage; or
(F) Adult children of a person in a relationship that is described in subdivisions (5)(A)-(E); …
The actual defense must be affirmatively asserted in response to the alleged “abusive civil action.” In other words, the defendant’s defense is that the plaintiff brought the civil action primarily to “harass or maliciously injure the defendant.” Just think of the divorced narcissist who files a civil suit against the former spouse without basis in law or fact as a way to retaliate for the divorce and, ultimately, win at all cost. Even if the case goes nowhere, litigation is expensive.
For the “civil action defendant” to prevail (that’s the defendant in the main civil lawsuit), a court of record must first determine that the main civil suit was maliciously filed by the “abusive civil action plaintiff” to abuse or harass. The affirmative defense must be raised in the answer or by motion during the main civil action. The court can also motion for hearing, sua sponte, to determine if the case is an abusive civil action. T.C.A. § 29-41-103.
If the civil action defendant prevails, then the main civil action – proven to be an abusive civil action – is dismissed. Other important remedies are available under T.C.A. § 29-41-106(b):
(b) In addition to dismissal of any pending abusive civil action within the jurisdiction of the court, the court shall:
(1) Tax all costs of any abusive civil action pending in the court at the time of the court’s finding pursuant to subsection (a) against the abusive civil action plaintiff;
(2) Award the civil action defendant reasonable attorney fees and all reasonable costs of defending the abusive civil action; and
(3) Impose prefiling restrictions upon any civil action the abusive civil action plaintiff attempts to file for a period of not less than forty-eight (48) months nor more than seventy-two (72) months.
Although a lengthy new Chapter, a more in-depth analysis is beyond the scope of this discussion. Know that the affirmative defense exists effective July 1, 2018. That a prevailing civil action defendant has remedies. That the civil action defendant’s failure to prove the main civil action was indeed abusive could have serious negative consequences. And that other laws may also provide civil remedies, such as an award of reasonable attorney’s fees. Talk to your lawyer on this one.
New Age Minimum for Child Marriages
The final piece of legislation we want to share followed passage of H.B. 2134. With Public Chapter 1049 effective May 21, 2018, child brides and grooms just got a little older. At least sometimes.
Amending T.C.A. § 36-3-105’s age minimum for a marriage license in Tennessee, county clerks and deputy clerks are now prohibited from issuing any marriage license wherein:
(a)(1) Either of the contracting parties is under seventeen (17) years of age; or
(2) One (1) of the contracting parties is at least seventeen (17) years of age but less than eighteen (18) years of age and the other contracting party is at least four (4) years older than the minor contracting party.
Any marriage entered into in violation of the new age restriction may be annulled. Generally, this would be a void or voidable marriage, depending upon the circumstances. In either instance, though, it could be annulled through court proceedings. That is not the end of it, though. A 16-year-old could still marry.
Younger Child Marriage Possible with Consent
By adding new provisions to the requirement of consent for a 16-year-old to marry, P.C. 1049 amended T.C.A. § 36-3-106. The two statutes work together, allowing a child to marry at age 16 or 17. Here’s the rule: If a child under the age of 18 desires to marry, then a legally interested adult must consent and join in the application for a marriage license. That means the adult must either personally appear before the county clerk or deputy clerk or must submit a sworn notarized affidavit.
Who has authority to consent to the youngster’s marriage? Assuming the minor is not already emancipated (this may not be a first marriage), it will be necessary to obtain written consent from a parent, guardian, next of kin, someone with custody, or the duly appointed agent of a public or private agency with legal custody of the applicant.
Before you go, note that P.C. 1049 also amended T.C.A. § 36-5-101(f)(1) regarding child support arrears. That law went into effect on July 1, 2018.
