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What happens when DCS substantiates an individual as a perpetrator of child abuse? When a Tennessee Department of Children's Services investigation substantiates a claim that an individual is a perpetrator of abuse, they may be placed on the TN Child Abuse Registry, which can have significant employment ramifications. Under Rule 0250-07-09-06 of the TN DCS Child Protective Services Rules, a report against an alleged perpetrator is classified as substantiated if DCS determines, by a preponderance of the evidence, considering entire record, that an individual committed any form of abuse/neglect. An individual who is an alleged perpetrator of abuse can challenge this finding. How does a challenge of a substantiation as perpetrator of abuse begin? Within 10 business days after the Department has closed its case and classified the individual as a perpetrator of abuse, the Department notifies the individual of this classification under the Department’s rule 0250-07-09-07. If they determine that the individual poses an immediate threat to the health or safety of a child to whom the individual has access, the department shall notify both the alleged perpetrator and the organization the alleged perpetrator is associated with under the Department’s rule 0250-07-09-08. The notification from the Department on the classification of their file informs the individual that they have the right to request a formal file review to determine if the report has been properly classified as substantiated. The alleged perpetrator has 20 days to request the formal file review. If the individual fails to submit the request for the file review within the 20-day period, absent a showing of good cause, the classified report becomes final, and the individual’s identity is placed on the non-public registry under the Department’s rule 0250-07-09-07. The alleged perpetrator has the right to submit additional written information for the file review within 30 days of receiving the notification. If there is no additional information submitted within 30 days, the review will be conducted without the information. This review will be completed within 90 days and at the end of the review, the individual will get written notice of the findings. Under the Department’s rule 0250-07-09-10, a stay or a temporary pause will be issued if the individual is arrested or indicted on criminal charges that are derived from the same alleged incident, if the individual is the subject of other administrative or civil proceedings that are derived from the same alleged incident, or if the individual pleads guilty to any charge, including reduced charges, arising out of this same incident. What happens if someone does not agree with the findings of the review? An alleged perpetrator of abuse has the right to a hearing before an administrative law judge if they do not agree with the findings of the formal file review, under the Department’s rule 0250-07-09-09. The individual must request this hearing within 20 days of notification of the findings. The department will not disclose the classification of the individual as a perpetrator of abuse until after this 20-day period has passed. If the individual fails to request the hearing within 20 days, absent good cause, they waive their right to a hearing and the individual gets placed on the non-public registry. If the individual requests the hearing, the hearing will be held before a DCS administrative law judge, and an initial order will be entered within 120 days. The sole issue for the administrative law judge to determine is whether, by a preponderance of the evidence considering the entire record, DCS proves that the individual committed any form of abuse or neglect under the Department’s rule 0250-07-09-11. If the administrative law judge concludes that a preponderance of the evidence does not support the conclusion that the individual committed an act of abuse, the report will be classified as unsubstantiated. If report is classified as unsubstantiated, the department will not release information from its records identifying the individual as a perpetrator of abuse and, if the department previously disclosed to any organizations/person that the individual was under investigation, the department will immediately notify that person that the report was unsubstantiated. Our attorneys are experienced at challenging attempts by DCS to substantiate individuals as perpetrators of abuse. Call us right away.

A child may be deemed “dependent and neglected” if the Court believes that the child’s safety, health, or well-being is at risk due to improper care, lack of supervision, alleged abuse, lack of medical care, or improper living conditions. Under T.C.A. § 37-1-102, a Dependent and neglected child is defined as a child: without a parent or legal guardian; whose parent or guardian is unfit to properly care for the child; who is under unlawful or improper care, supervision, custody, or restraint by any person or organization; who is unlawfully kept out of school whose parent or guardian neglects or refuses to provide necessary medical care for the child; who is found in place of violation of the law because of lack of supervision; who is in under improper control as to injure or endanger the morals or health of the child or others; who is suffering from abuse or neglect; who has been in the care of an angency or person not related to the child (by blood or marriage) for a continuous period of six or more months (in the absence of a power of attorney or court order) and that person or agency has not initiated judicial proceedings seeking legal custody or adoption of the child; who is or has been allowed to engage in prostitution/pornography and whose parent or guardian refuses to protect the child from such activity; who has been left in the sole financial and physical care of a related caregiver for more than eighteen consecutive months by the child’s parent or legal guardian and the child will suffer harm if removed from the continuous care of such relative. How does the process work? These cases typically arise from DCS investigations, reports from schools, doctors, or other professionals, family disputes, or allegations of abuse or neglect. A Dependent and neglect case begins by the filing of a petition by anyone with knowledge of the alleged facts or is informed and believes the facts to be true can file the petition under T.C.A. § 37-1-119. Prior to the preliminary hearing, a child can be removed from the custody of a parent or legal guardian. Removal must be pursuant to a Court order, based upon sworn petition or sworn testimony, that the child is dependent, neglected or abused; and removal of the child is required because the child is subject to an immediate threat to their health or safety and waiting for the preliminary hearing would likely result in severe or irreparable harm. If the child is taken into custody before the preliminary hearing, the hearing will happen within 72 hours of removal. T.C.A. §37-1-117. At the preliminary hearing, for removal of the child from custody of a parent or guardian, the Court must find that there was probable cause that the child was abused/neglected and the child is subject to immediate threat to their safety and severe/irreparable harm will occur and there is no less drastic alternative to removal. T.C.A. §§ 37-1-114, 37-1-117. An Adjudicatory Hearing, which is a trial on the merits of the Petition, will occur to determine if there are findings of fact to support the Dependent and neglect allegation. Then, there will be a Dispositional Hearing where the arrangements for custody of the child will be determined. These can include placement with parents subject to conditions, temporary custody to a qualified individual, or custody to DCS. Then visitation and permanency plans can be decided all in the child’s best interest. T.C.A. § 31-1-130. How we can help: We represent parents, guardians, and relatives in Dependency and Neglect proceedings throughout Middle Tennessee. We protect our clients’ rights and work towards a safe reunification whenever possible. Dependency and Neglect proceedings can move quickly and we assist clients at every stage of the process including responding to DCS investigations and interviews, representation at emergency or adjudicatory hearings, challenging and defending against allegations of abuse or neglect, advocating for reunification and family-centered solutions, ensuring court-ordered services are fair, and protecting parental rights. If you are facing a Dependency and Neglect case, call us right away. Do not face the system alone.

How is child support calculated? Child support calculations in Tennessee are complicated, but essentially the court will determine the parties' incomes and will establish a total "household" income. A parenting schedule is then established, resulting in the total number of days each parent will exercise parenting time. The total household income is then divided between those parenting days, to provide a consistent standard of living for the child regardless of which home they are in. The following factors determine child support: The gross income of each parent The amount of time each parent spends with the child(ren) The number of children being supported. The Income of Each Parent: In the simplest case, your gross income will be found on your W-2 form. However, in some cases determining income can be more difficult. As a general rule, income includes all money from whatever source received and includes things such as gambling winnings, disability payments, workers’ compensation payments, and money received from personal injury lawsuits or claims. The Amount of Time Each Parent Spends with The Child: Typically, the more time a parent spends with the child, the less that parent is required to pay in child support. The logic is that parents will be spending money to support their children’s needs and wellbeing when they are with the children. Child support is intended to maintain that financial support when the children are with their other parent. The Number of Children Being Supported: The number of children being supported is factored into the total amount of child support needed, and parents will get credit on the child support worksheet for any child support they may be paying for children with different parents. Other Credit Given to Each Parent: In addition to receiving credit for any other children each parent is already supporting, both parents will get credit on the child support worksheet for work-related childcare expenses they are paying and for health insurance premiums paid for the children's portion of the health insurance. The basic steps the court will take in determining child support are: A determination of the parties' income is made; A total "household" income of both parties is established; A parenting schedule is established, resulting in the total number of days each parent will exercise; and The total household income is divided between those parenting days, to provide a consistent standard of living for the child regardless of which home they are in Child support is complicated. We suggest retaining an attorney to assist in ensuring that child suppurt has been correctly calculated, and that you are getting all of the credit you are entitled to.

What all is involved in a divorce with minor children? Property Division: For a divorce in Tennessee, marital property is divided through equitable distribution. Marital property is anything that either party acquired after the marriage. Marital property must be divided equitably and in a manner that is reasonable and fair, although not necessarily equally. If one spouse has spent all of their time at home with the children, for example, the judge will view that time as a homemaker as a substantial contribution to maintaining the household. Who gets the house? The judge will view the marital residence as marital property, and not as an emotional place where the children should remain. If the parties can’t reach an agreement as to who should remain in the home, and how the other spouse should receive their portion of the equity, the judge will order the house be sold and will divide any profit equitably. Parenting Plan: In Tennessee, a “Permanent Parenting Plan” (PPP) is required to be filed in order for parents of minor children to get a divorce. PPPs can be completed by the parties or their attorneys and are formal, enforceable agreements. If the parties cannot agree to the terms of a PPP, each parent must file his or her own proposed PPP with the court and may be required to attend mediation to resolve the differences. If an agreement on the differences cannot be met during mediation, the court will determine a PPP for the parties. Drafting a PPP correctly and in a way that the judge will approve is very difficult and should not be attempted without the assistance of a qualified divorce attorney. Parenting Education Seminar: A Parenting Education Seminar gives parents information to deal with their children and with each other during and after the divorce. In any divorce where a PPP is entered, each parent is required to attend a Class. However, if the parties have reach an agreement on all of the terms of the PPP, the parties can file a waiver asking the court to waive the parenting seminar requirement. Child Support: Child support calculations are complicated, but essentially the court will determine the parties' incomes and will establish a total "household" income. A parenting schedule is then established, resulting in the total number of days each parent will exercise parenting time. The total household income is then divided between those parenting days, to provide a consistent standard of living for the child regardless of which home they are in. See our education center post on Child Support here for more info.

Who receives custody of a child when the parents are not married? In Tennessee, an unmarried mother automatically has physical and legal custody of her child. Because of this, unmarried fathers may face challenges when attempting to gain shared custody of their child. In these situations, it is important that a father wishing to establish his parental rights seek the help of an experienced family law attorney. How can an unmarried father obtain custody or visitation rights for his child? The first step a father can take to receive custody rights is to first establish paternity. A presumption of paternity only exists if: The parents were married to each other at the time of birth or within 300 days prior to it. The parents married after the child’s birth and the man registered as a putative father, consented to be listed on the child’s birth certificate, or consented to provide support to the child. The nonparent man has brought the child into his home and held him out as his son or daughter. How can an unmarried father establish paternity? The father and mother can always agree to a Voluntary Acknowledgement of Paternity document at the hospital to establish paternity. However, if the parents aren’t able to come to this type of agreement, a father may file a petition to establish paternity in a Tennessee court. In Nashville and in most counties, this petition would be filed in Juvenile Court. After the petition is filed, the court may order DNA testing to establish paternity. If the father is able to successfully prove paternity, the court then enters an order of parentage to legally establish the father’s paternity. How does an unmarried father receive custody once he has established paternity? Once parentage has been established, the father can then petition the court for custody or visitation time with his child. The court makes all child custody decisions at their own discretion and every case is different, but the court will keep the best interests of the child in mind. The parents will have to either agree to a Permanent Parenting Plan, or if an agreement cannot be reached, both parties can submit their proposed parenting plans to the court and the judge will decide, following a trial, what the best parenting plan is for the child. This plan will establish, among other things, who the primary residential parent will be, what the parenting schedule will be (including holidays and school vacations), and what the child support obligation will be for the alternative residential parent. If you are an unmarried father that is being prevented from spending time with your child, it can be a challenge to receive the parenting time that you want. If you wish to assert your right to play an active role as a father in your child’s life, you need an advocate to keep you and your child’s best interests in mind. Call the attorneys at Ryan C. Davis Law, PLLC today at (615) 649-0110. We understand family law in Nashville, Tennessee and we’re here to help. Click here for more child custody related education center posts.

Modifying a Permanent Parenting Plan Anytime that parties with minor children are divorcing, a “permanent parenting plan” is required before the divorce can be finalized. Parties that have not been married may also have a permanent parenting plan as a result of a juvenile court proceeding. The permanent parenting plan essentially establishes the parties total number of parenting days each year, how holidays are divided, how much child support is to be paid, and who is responsible for things like health insurance. In an attempt to provide children with stability and predictability, a permanent parenting plan is intended to be as “permanent” as possible, but there are times when a modification is both appropriate and necessary. However, before a court can modify a permanent parenting plan, or otherwise change custody of a child, the court must consider whether there has been a substantial and material change in circumstances that justifies the change. If there has not been a substantial and material change in circumstances then the court will not modify the parenting plan or make any custody changes. However, if there is a substantial and material change in circumstances, you must also prove that the modification is in the best interests of the child. Generally speaking, a substantial and material change in circumstances is something that alters the conditions of the child’s life significantly enough to justify the court making a change. However, the threshold in determining whether a substantial and material change in circumstances exists depends on the significance of the requested modification. For example, if you are the alternate residential parent and you want to modify the parenting plan to become the primary residential parent, the threshold is significantly higher than it would be if you wanted one more week of parenting time in the summer. Nonetheless, no matter what the threshold, determining whether a substantial and material change in circumstances exists depends on what has changed since the last court order. For examples of what may constitute a substantial and material change in circumstances see our Education Center post on What Constitutes a Substantial and Material Change in Circumstances. If you are able to prove that there has been a substantial and material change in circumstances, the Court will then consider whether the modification serves the best interest of the child. Tennessee Code Annotated § 36-6-106 lays out relevant factors that the court should consider when making this determination. For more information about the factors the court considers, see our Education Center post Is the Modification of the Parenting Plan in the Best Interest of the Child. If there has been a substantial and material change in circumstances such that a modification of the permanent parenting plan is in the best interest of the child, then the courts may modify your parenting plan and give you more time with your child. An experienced family law attorney can advocate on your behalf in custody and child support disputes. The attorneys at Ryan C. Davis Law, PLLC provide comprehensive legal guidance to individuals in all aspects of family law, including child support, child custody, and divorce matters. Call 615-649-0110 to schedule a consultation today.

When Is the Modification of a Parenting Plan in the Best Interest of the Child? There are two conditions that apply to every modification of a permanent parenting plan or child custody agreement. First, you must prove that there has been a substantial and material change in circumstances since the parenting plan or child custody agreement was ordered by the court. Second, if there has been a substantial and material change in circumstances, you must prove that any modification or change will serve the best interests of the child or children. In determining whether a change meets the best interests of the child, the court should consider all relevant factors, including the following: The strength, nature, and stability of the child’s relationship with each parent, including whether one parent has performed the majority of parenting responsibilities relating to the daily needs of the child; Each parent’s or caregiver’s past and potential for future performance of parenting responsibilities; The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care; The degree to which a parent has been the primary caregiver; The love, affection, and emotional ties existing between each parent and the child; The emotional needs and developmental level of the child; The moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child; The child’s interaction and interrelationships with siblings, other relatives and step-relatives, and mentors, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities; The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment; Evidence of physical or emotional abuse to the child, to the other parent, or to any other person; The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child; The reasonable preference of the child if twelve years of age or older; and Each parent’s employment schedule. Of course, these are just a few examples of factors that the court may consider. Ultimately, whether a modification of the parenting plan or a change in custody is in the best interest of the child depends on the specific facts of each individual case. If you are looking to change your current parenting plan, you should begin the process by consulting with an experienced family law attorney. Each case is unique and will require a strategy tailored to your goals. Our family law attorneys are here to provide you with the guidance you need for the custody arrangement that is best for your child. Call 615-649-0110 to schedule a consultation today.

What Constitutes a Substantial and Material Change in Circumstances? Prior to any modifications or changes to a permanent parenting plan in Tennessee, there must first be a substantial and material change in circumstances. This determination will depend on the specific facts of your case. A substantial and material change in circumstances does not require a substantial risk of harm to the child, but the change must alter the conditions of the child’s life in a way that a modification is in the best interest of the child or children. The following are examples of situations that may constitute a substantial and material change in circumstances justifying a modification of the parenting plan: Remarriage of a party One parent attempting to impair or interfere with the child’s relationship with the other parent Changes in the home surroundings Mistreatment of a child by a parent or a stepparent A parent’s drug or alcohol abuse A parent’s criminal convictio A parent’s failure to comply with a CPS family service plan; Taking a child out of state or denying possession A parent’s relocation A child’s desire Changes relating to the child’s age Changes in a parent’s living or working conditions Failure to adhere to the parenting plan This list, however, is not exhaustive and determining whether there has been a substantial and material change in circumstances depends on the specific facts of your case. Modifying an existing parenting plan or custody agreement can be complicated and time consuming. It is best to hire an experienced family law attorney who can help guide you through these difficult times. Ryan C. Davis Law is here to help you prepare a plan tailored to your goals. Reach out to us at 615-649-0110 to discuss the specific circumstances of your case and learn what options may be available to you.