Soldiers’ parental rights in custody cases

As a family law lawyer near Fort Campbell, (text me at 931-217-7648 with questions) many of my clients are soldiers in the U.S. Army. As Soldiers, they frequently move from post to post, deploy and are assigned overseas, not to exclude temporary duty assignments such as schools and training in the field.  These high tempo operational needs of the Army conflict directly with the soldiers ability to parent. While gone from home, many times the Soldiers is dependant on wife, step-spouse or relatives to take care of the minor child while away.  The problem for the parent soldier is that the central focus of a custody case relates to a parents ability to have a day-to-day presence in a child’s life.  Whether it be a divorce or post divorce custody case, the deployment schedule and training schedule for the soldier can be used against the soldier as a parent. This causes a huge problem in defending soldiers rights as parents in court proceedings.

In Tennessee, like most states, the primary test to determine whether or not a parent will be  the primary residential parent is the “best interest of the child test.” This is sometimes call the comparative fitness of the parents test. The best interest of the child test has a set of factors which the judge uses to evaluate the relative abilities of each parent to be the primary residential parent.

Tennessee Code Annotated 36-6-106 (a) lays out the factors for child custody determinations. There are fifteen factors which a judge uses in order to determine who is named as the primary residential parent. Each factor relates to the effect on the child. Every factor is related to the effect on the child.

Obviously, the central concern is for the child.  And, this may seem like the best answer for determining who should be the primary residential parent in a custody case. The problem is that there are some central assumptions of the test which go against the Soldier and military life. Factor 5 deals with whether or not a parent has primarily been in the role of the primary residential parent.  Many soldier can’t fulfill this role except when they are home. Factor 10 is a determination of the continuity in child’s life.  This is a factor that frequently goes against a military life-style. Factor 14 deals with a parent’s employment schedule.  Rarely can a Soldier win this one. The loss of these three factors in a very close custody case frequently means an automatic loss for the military soldier.

The custody case involving a Soldier requires a very concentrated “re-education” of the Court.  The case must develop around teaching the Court the value of a military lifestyle.  Teaching the Court about the benefits of the services provided by the military is essential. The benefits associated with having a soldier in the military, the availability of medical care, stability of finances, ability to use the EFMP (exceptional family member ) program, even the stability of a life-style with a strict code of ethics related to drug usage and alcohol. The central negative assumptions have to be overcome or the Soldier has no chance of winning.

Most States have an underlying assumption built into their custody determinations that assume stability equals not moving.  For a Soldier, this assumption must be attacked.  There is a value to being worldly and educated.  It is no longer stigma to be an “army-brat.”  A child that is given the opportunity to live in Europe or Asia for several years can be enhanced by the experience.  These types of unique ways of looking at the military lifestyle have to be presented to the court in a positive way or the Soldier will lost meaningful visitation and an opportunity to be name the primary residential parent for the children.

Divorce Budget

Ultimately, a divorce is about two crucial things: Finances and Kids. In an initial consult with a prospective client, I frequently ask about the short-term and long-term financial goals of my future client.  I need this information so my client and I can begin to work on a realistic financial plan.  If I have a wife that wants to go back to school, I need to figure out how much she needs.  If a husband wants to survive with a retirement in his future, we need to factor in the 401k payments.

The problem is that many clients have never really considered a “separate” and no-marital future. They haven’t thought about how much they need to make to survive and thrive. Or, the money has been controlled by one spouse or the other. They don’t realize that the “status quo of marital money” is about to be ripped asunder.  Normally, in a marriage, one person has been handling the finances and then comes the separation.  Suddenly, two household require electricity, cable, gas, rent, etc. The burden of paying bills doubles.

One tool for knowing the financial state of affairs is the Income and expenses statement. The income and expense statement is designed to give judge a picture of your budget.  Although relatively simple, this is a critical piece of a divorce.  The income and expense statement can be used for both temporary and long-term support.  This gives both the parties and the judge a brief snapshot of how much money is made and spent. The need to live within a budget become critical in most divorces..  The judge can also use the income and expense statement as a means of quickly comparing income for both parties.  He literally holds up Husband’s income and expense statement against the Wife’s income and expense statement and compares.  This gives him an idea of each parties needs and financial responsibilities.

If you would like to ask me a question, text James Phillips at (931) 217-7648 or email

Dating and Sex During a Divorce

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In Tennessee, dating and having sex during the course of a divorce can effect the outcome of the divorce proceedings.  Tennessee remains a fault based state and infidelity both emotional infidelity and physical infidelity can be used as grounds for divorce. The problem is that when a contested divorce can sometimes extend out for months and years, asking the client not to date or have sex becomes problematic.  One of the main factors I look at is to see whether or not children will be around the paramour.

The best advice is do not date or have sex while you are going through a divorce.  Your spouse can and will use it against you and you will most likely be forced to answer questions regarding the relationship during your discovery phase of the divorce.  The main thing is not to lie about the relationship if you are asked during discovery. And, DO NOT LIE ON THE STAND.  Also, you need to be candid with your attorney and let them know that you are seeing someone so that can be prepared for the oncoming onslaught of accusations.  As attorneys, we do no like it when the opposing side knows something we don’t.

When it comes to kids, generally, the Judges do not like it when you have a new paramour around the minor children.  This can have a negative effective on the outcome of the custody determination and also may force the paramour to testify at your final hearing.  One of the factors used in the “best interest of the child test” is to look at the character of the people that are in contact with the children.

Finally, be very careful with social media.  Publishing pictures of yourself and your new boyfriend/girlfriend on social media, even if you believe your spouse is blocked will come back on you later.  Social media has become a divorce lawyer’s best friend.


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.

Tennessee Example Parenting Plan

Here is an example of a Tennessee Permanent Parenting Plan which is used for both divorce and custody cases in Tennessee.  Tennessee Blank Parenting Plan

If you are doing a divorce or custody case in Tennessee, you need to work through the Parenting Plan and create a Plan that is in the best interest of your children.

At Invisible Lawyer, a lawyer is willing to work the Tennessee Parenting Plan with you.

Tennessee Marital Dissolution Agreement (MDA) Revocation

In Tennessee, you might have signed a marital dissolution agreement (MDA), but have decided you don’t want to get divorced on the terms in the MDA.  You are probably going to want to stop the uncontested divorce and may want to revoke or rescind your agreement to get divorced. This is something that you can do prior to the divorce is finalized by the Judge. After the divorce is finalized, it becomes very difficult to overturn a MDA.  See Beem v. Beem.

Some of the of the reasons this can happen:
1. you have buyer’s remorse.
2. you didn’t have an attorney and you figured out that you are getting messed over
3. you decided you didn’t want to get divorced
4. you found out your spouse is lying and you want to rework the deal

One way or another, revoking the MDA can be done even if you signed the dang thing. If you are revoking the MDA, you really need an attorney. The process is to immediately inform the court that you no longer agree to get divorce because if you don’t the other side may use your MDA to get divorced.  Generally, your attorney will file a notice with the court that you are rescinding your agreement or revoking the MDA.

Once you do this, you are almost certainly going to send the divorce contested.  It is going to make the other side made and probably cost you more money.  Sometimes this is worth it, but don’t make the decision to revoke your MDA haphazardly.

Now, the signed MDA may be used against you later at the final hearing. The other side can use your agreement as evidence against you. They will probably file a Motion to Enforce the MDA, which means that they will ask the court to enforce the MDA regardless of you not wanting the divorce to proceed. This generally won’t happen because a Tennessee divorce is going to require your agreement, unless the other side has been hurt by your signing the MDA.  Either way, get ready for a fight.  At Phillips Law, PLLC, we are ready to help you with that fight.