Several new laws which effect divorce and custody cases take effect today. I’ll post a brief summary of the most important bills.
Mental health records of parents in custody cases
SB0028 – I previously blogged about the problems the Tennessee Courts of Appeals were having with whether or not parents could be required to disclose their mental health records. When a court is making a custody determination or creating a parenting plan, the mental and physical health of the parties is one of the many factors a court should consider. This new law doesn’t really do much other than clarify that medical records pertaining to any mental illness a parent may have (or had) are subject to discovery and shall be considered by the court.
My only concern is this statue might cause people to place a greater emphasis on the mental condition of the parents than there should be. There should be no question that the court should be aware if a parent has a condition that might make them act in ways that are harmful to the children, but consider the following legislation.
Persons with disabilities and custody determinations
SB0749 – This law provides that while the mental and physical health of a parent is a factor in a custody determination, a “party asserting or claiming that a parent’s disability renders the parent unfit of otherwise incapable of satisfying the physical, emotional, educational or psychological needs of the minor child must establish by clear and convincing evidence that the disability of that parent poses a substantial risk of harm to the health or safety of the minor child at issue.” The law also requires that judges and family law mediators receive annual training regarding the issues related to parents with disabilities.
Other than create a very high standard of proof in these cases, this law really shouldn’t change anything. I think most of our judges are savvy enough not to give a parent’s disability any more consideration than it deserves. In some cases these two laws may work together in an interesting way: It’s now clear that judges will have access to medical records of mental illness or disability, but the mere presence of a mental disability may mean nothing if it can’t be shown by strict evidence that the parent’s disability is likely to have a harmful effect on the children. This is an appropriate result, but this is what should have been happening under prior law anyway.
Please note that I’m not suggesting that a mental health illness is the same as a disability, or vice versa. I do think there are times when both of these laws will be relevant in an individual’s case.
Parents relocating more than 50 miles away
HB0597 – I recently wrote a post about moving a child away from the other parent (I’ll have to update that post soon). In short, the law was that if you planned to move a child more than 100 miles away from the other parent, you had to serve that parent notice and give them a chance file a petition protesting the move. This new law does nothing more than reduce that distance to 50 miles rather than 100.
Termination of parental rights
HB0710 – There are a number of reasons why a parent’s rights to their children could be terminated. This new law adds that a parent could lose their rights to their children if the parent is convicted of trafficking for commercial sex act (otherwise known as “pimping”) and a child of the parent is one of the victims.
SB0923 – Previously, a parent’s rights to a child could be terminated if the parent was convicted of rape or aggravated rape and the act resulted in the conception of the child. This new law adds that a termination can take place for conviction of rape of a child, which results in the conception of the child at issue. Oddly enough, the bill removes the crime of rape (which is sexual penetration by force, but without bodily injury) from the list. I find this a little baffling.