13 Aug 2013

TN Dad Abandoned Children by Not Visiting or Seeking New Court Order

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Tennessee law case summary on adoption and termination of parental rights in divorce and family law from the Court of Appeals.

In re: The Adoption of Angela E. – Tennessee divorce adoption, parental rights termination.

The husband and wife, who were divorced in 2001, were the parents of three children.  In 2005, the wife filed a petition to terminate the husband’s parental rights.  This petition also included a petition for adoption by the wife’s new husband.  This petition was granted, but the Tennessee Court of Appeals reversed this order in 2010 and remanded the case.

On remand, the trial court denied the petition.  The trial court noted that in four years, the husband had paid over $40,000 in child support.  And because there had been an order suspending his visitation, the trial court also found that his failure to have visitation with the children did not constitute abandonment.

The wife and her new husband appealed to the Tennessee Court of Appeals.  A majority of the Court of Appeals reversed the trial court.  According to the Court of Appeals, the order suspending visitation rights did not preclude a finding of abandonment.  It also held that the husband had failed to make reasonable payments toward the support of the children.  The husband appealed to the Tennessee Supreme Court.

The Supreme Court first noted that in order to terminate parental rights, the case must be proven by clear and convincing evidence.  The Supreme Court first looked at whether the evidence supported abandonment based upon failure to pay child support.  In the four months prior to the petition, the husband had paid $3500 of the over $10,000 owed.  The Court of Appeals had held that this was a mere “token” amount, and that the husband had abandoned the children by not making larger payments of which he was capable.  However, the Supreme Court disagreed, and instead agreed with the trial court’s finding that this $3500 payment was not a mere token payment, and precluded a finding of abandonment.

The second ground of abandonment was the husband’s failure to visit the children.  The husband argued, however, that his right to visit had been suspended by court order.  However, the Supreme Court noted that in the three years prior to the petition, the husband had not exercised any parenting time.  The order suspending visitation provided for a means of having it lifted, but the husband had made no effort to do so.  The Supreme Court noted that the husband had not actively tried to maintain visitation.  Therefore, the Supreme Court concluded that the evidence supporting a finding of abandonment.

The Supreme Court remanded the case, because there had been no finding as to whether the termination of parental rights was in the best interest of the children.  Therefore, the trial court was required to make that determination before terminating parental rights.

No. W2011-01588-SC-R11-PT (Tenn. 2013).

See original opinion for exact language.  Legal citations omitted.

Memphis divorce attorney, Miles Mason, Sr., practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC.  Buy The Tennessee Divorce Client’s Handbook: What Every Divorcing Spouse Needs to Know, available on Amazon and Kindle.  To schedule your confidential consultation, call us today at (901) 683-1850.

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