Tag: Custody or Visitation

Spires v. Simpson: The Supreme Court Clarifies Wrongful Death

            In December 2017, the Tennessee Supreme Court issued the opinion on Spires v. Simpson, concerning a wrongful death lawsuit out of Monroe County, Tennessee. 

            In Spires, Mr. and Mrs. Spires were parents of a minor child, born in the spring of 2009.  One month after the child’s birth, Mr. Spires abandoned the family, though the parties did not divorce.  Mr. Spires did not provide any child support or financial support to Mrs. Spires.  In October 2010, Mrs. Spires was tragically killed in a car accident.  Following her death, custody of the Spires’ child was given to Mrs. Spires’ mother. 

            One month after Mrs. Spires’ death, Mr. Spires brought a wrongful death action against the driver of the vehicle in the accident that killed Mrs. Spires.  Both Mrs. Spires’ mother and brother sought intervention in the wrongful death accident, claiming that they, as custodians of the Spires’ child, were entitled to any wrongful death settlement, not Mr. Spires due to Mr. Spires having failed to pay any child support to Mrs. Spires for benefit of his child. 

            The trial court agreed with Mrs. Spires’ mother and brother, and held that Mr. Spires could not recover any amounts from the wrongful death lawsuit due to him owing back child support to Mrs. Spires and for benefit of four other unrelated children.  The Tennessee Court of Appeals reversed in part, holding that while Mr. Spires was entitled to prosecute the wrongful death lawsuit; however, any recovery he received would be applied to his back child support arrearages on the children other than his child with Mrs. Spires. 

            The Tennessee Supreme Court disagreed with both the trial court and the Court of Appeals.  The Supreme Court held that the child support arrearage provisions at Tenn. Code Ann. § 20-5-107 and Tenn. Code Ann. § 31-2-105 did not apply in the Spires’ case, as Mr. Spires was prosecuting the wrongful death action as the surviving spouse of Mrs. Spires.  The Child Support Arrearage forfeiture provisions under Tennessee law only preclude a parent who is behind on child support from prosecuting a wrongful death action on behalf of a deceased child, when that parent owes child support for benefit of the deceased child.  The Supreme Court found that the purpose of the two forfeiture provisions was to prevent a parent behind on child support from financially benefitting from the wrongful death of a child the parent failed to support.    

            The Spires opinion clarifies the interpretation of who can bring a wrongful death action, and the Child Support Arrearage forfeiture provisions.  For more information, or to read the full opinion, visit http://tncourts.gov/courts/supreme-court/opinions/2017/12/27/kenneth-m-spires-et-al-v-haley-reece-simpson-et-al .

Appellate Court Decisions, Custody or Visitation

Custody & Visitation In Tennessee

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Technically, in Tennessee we no longer use the words custody or visitation. A few years back, the statutes were changed and now – you will see the words Primary Residential Parent and Parenting Time replacing those words.

However, the words are interchangeable.

The Primary Residential Parent is the parent with whom the children live the majority of the time. Parenting Time is the time either parent spends with the child.

Permanent Parenting Plans are the parenting schedules attorneys prepare for their clients setting out parenting time, holiday visitation, child support and numerous other agreements that pertain to the children.

Custody can be the most expensive aspect of a divorce. Kids are often caught in the middle of the divorce. For this reason, every divorcing parent in Tennessee is required to attend a parenting class before their divorce is finalized. There are many such classes during the day and evenings in Nashville, Lebanon, Mt. Juliet, Watertown, Hartsville, Lafayette, Carthage and Gordonsville. There is no requirement that the parents attend together and the classes last only a few hours but in those few hours, teach parents how to help the children through this difficult process.

I have many clients who don’t believe they need to fill out a detailed Parenting Plan. They are sure they will get along in the future and don’t need to determine exactly who gets parenting time from when to when.

My advice to my clients is to be as specific as possible in these plans now. Then, if you choose, put the Parenting Plan that you both signed off on, in a drawer and never look at it. So long as you and your spouse are in agreement do as you wish when it comes to parenting your children.

However, when there is a disagreement as to whose holiday it is, or whether your new husband can pick up the kids from school, you can pull out the Parenting Plan and abide by it.

You live and die by the terms of the agreements you sign. Be very careful before signing any Parenting Plan. These plans become Court Orders once the Judge finalizes your divorce.

If you read the plan and get an awful feeling, do not sign it! Get advice from a local attorney who can tell you whether what you are agreeing to is fair.     

 

Custody or Visitation, Permanent Parenting Plans, Primary Residential Parent

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