Tennessee Legislature may change child custody law
Posted: Wednesday, May 18, 2011 8:01 pm
By SHEILA BURKE
NASHVILLE (AP) — A bill close to passing the state legislature would require judges to consider how to maximize a parent’s involvement in a child’s life when making custody decisions.
Although not the only factor to be considered, the call for “maximum participation possible” could lead some judges to increase visitation time or divide custody 50-50 more often, legal experts say.
The bill, whose main sponsor is Sen. Andy Berke, D-Chattanooga, was set to be heard on the Senate floor Wednesday. It has already passed in the House of Representatives.
“It will have a significant impact because it’s a different standard from what we have now,” Nashville attorney Marlene Eskind Moses said.
The proposed law says courts still have to take into account what is in the child’s best interest, how far the parents live from one another and the child’s need for stability.
If the law passes, it would only apply to new custody orders going forward. Parents under older court orders still have to show a significant change in circumstances to change their visitation and custody schedules.
Moses and other lawyers say the term “maximum participation” is going to be open to different interpretations.
It’s unlikely that most judges are going to interpret the new law to mean each parent shall have equal custody because the proposal still requires courts to take into account what is in a child’s best interest, said Helen Rogers, a Nashville attorney. But she said some judges will see things differently.
“It would give some judges with their own social agenda leeway to divide custody 50-50,” Rogers said.
Others say that phrase would certainly be grounds to give greater visitation rights in many cases.
“The bill would certainly encourage more expansive sharing of time, as opposed to restrictive sharing of time,” said Knoxville attorney Sarah Sheppeard. “But under any of these, the paramount question is what is in the child’s best interest, and the law doesn’t change that.”
Legal experts say the bill was a compromise to a plan fathers’ rights groups have been proposing for years, which would require judges to split custody equally absent evidence of it being harmful to a child.
One leading fathers’ rights advocate says the bill is disappointing and may even make things worse.
“It’s definitely not the alternative to what we wanted,” said Tony Gottlieb, president of DAD of Tennessee. He said the bill encourages parents to relocate because it considers where the parents live.
Moses said that if the bill passes, there will be a lot of questions about when and under what circumstances parents will be able to get to see their kids. She sees some parents arguing that the new law allows them to attend every doctor’s appointment, soccer game or outside activity regardless of whether they have a scheduled visitation during that time or not. Some parents, she said, may claim the law would give the right to visitation any time the other parent is not available for the child, whether it’s due to work or going out in the evening.
Sheppeard said it’s going to be up to the appellate courts to interpret what “maximum participation” means in different family circumstances.
“If this bill passes, she said, ”then there will need to be a body of case law to tell us what that phrase means.“
Published in The Messenger 5.18.11