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Let’s Get Help – Factors to Consider When Hiring An Attorney

The 10 Most Important Aspects and Qualities

Why? – One of the most important aspects to consider is why you need an attorney. This factor alone will largely influence the attorneys and lawyers you will have the opportunity to work with on your case. Depending on the type of law your case is in, the pool of available attorneys will rise and fall. Where you are located will also have an impact on viable options. Some attorneys are only licensed in certain areas, or only practice in areas more local to them.
How long will the case be? – This aspect will influence how long you will be working with the lawyer you choose. Depending on the type of case you have, you could be working with your attorney for over a year. At our office, most cases last 3-6 months, with those special cases lasting over a year or longer. Because of this, you want to choose a lawyer you know you will be able to trust and work with. This person will be handling your legal case, advising you on the best course of action, so you must be able to trust them, their expertise, and their experience.
How many cases are they already handling? – Though a super relevant quality to consider, it may be relevant to the length of your case. If you are working with a large office that is going through case after case, yours will be balanced equally with every other case. You will want to choose an attorney who can put equal effort and attention to your case even with their other cases.
The reputation – The reputation of a lawyer is vital to their success. An attorney’s area of expertise and prior experience are important, many states have extra programs and organizations for lawyers to earn extra certifications and further their education. A lawyer’s reputation is critical information when choosing someone to represent you. For long-term counsel on more complex issues, it’s important to find someone close to you location wise, so you can develop a trusted, face-to-face relationship with them.
The size of the firm – The size of the firm is a surprisingly important factor. The size can determine the access to resources, the relationship of the team, and even the clientele. Bigger firms commonly have access to more resources, however they are always more costly, and it’s harder to build a one-on-one relationship with your attorney as you will be going through the secretariat staff as well. Larger firms also handle larger caseloads as they have more attorneys and staff. Smaller firms may not have the same wide, equal access to resources, however they are usually less pricey. Working with a smaller firm will be more personal as they usually don’t have a large pool of secretariat staff, so you will often work one-on-one with your attorney.
The resources – The resources an attorney or firm has at hand is important. It can and will affect your case, the time spent on it, and the outcome. Firms with a large number and range of resources are, of course, going to be more successful than those without. Another ‘resource’ to consider is people; when a lawyer or attorney has been working in one field in one area for so long, they start forming connections and relationships with others in their field. So even if a firm is small, they too can have a number of resources.
The Team – Another surprising factor is the team. How well do you see the employees working together? Do they get along and accomplish tasks together? How often do they even work with one another? These are all questions you may consider asking when choosing an attorney. How well a team works together is indicative of their success. Teams who can work together and accomplish tasks and responsibilities with each other are teams you want to work with!
The relationship – Do they seem like they have a trusting relationship with one another? A trusting relationship with their clients? These questions will help you choose your attorney, and help you in founding and building your relationship with them. It’s important to trust your attorney, with your records, information, the case in general, but also trust them with your thoughts and worries too.
Communication – Communication is a very important and very obvious aspect in choosing your attorney. You want to be able to effectively communicate with your attorney! Being able to keep an open line of communication will help build the relationship between you and your attorney. Try to establish proactive communication at the beginning and agree on regular check-in times to discuss updates and ask questions. Though it may not seem important, mutual respect and the knowledge that your representative is of good character can play a crucial role. Throughout the litigation process, you’re going to need somebody you can trust to advise you on course of action, to defend you in court, and stay on top of your case.
Billing & pricing – Different firms choose to bill their clients in different ways. Some choose hourly, and will bill you per hour they work on your case. This billing is more costly, especially if your case is larger or longer. Retainer Fees are still hourly billing, but you give the attorney a sum of money to cover initial charges. There is no ‘standard’ retainer, as most lawyers choose their own. A flat fee is when the attorney charges their clients upfront. It is pricier at first, but if your case is larger and/or longer, this is usually the best way to go. A contingency fee is when an attorney does not charge the client if they lose, but takes a percentage of any fees awarded if they win the case. If this is the route you end up going down, you and your attorney should work out a percentage number before you start on the case together. A negotiable fee, obviously, is when an attorney is willing to negotiate the amount or type of payment they’re willing to accept. This can save you money when you only need to speak with your lawyer briefly on the phone. At the very least, it helps to review the lawyer’s billing methods and see where they’re able to be flexible.

Our Firm’s Commitment

At our firm, we value our clientele. We value empathy, and think it is important to know our clients. What are their names? What are their stories? We value excellency, by preparing ourselves and our clients to get the best results possible. We value efficiency, and aim to get the best possible results and provide the best possible experience. We value advocacy, and push to achieve the interests of our clients at every stage, and zealously advocate for them. We value initiative, and try to be proactive and strategic in pursuing the goals of our clients. We value timeliness and responsiveness, and understand our clients eagerness for news and updates on their cases. We value honesty, and are committed to being truthful and candid with our clients. We pledge to pursue the best outcome for all of our clients, and hope to do the same for you, give us a call at Roland Hairston & Associates!

DISCLAIMER: The purpose of this article is to provide the general public with general information related to legal issues. None of the information provided within this article is intended to be construed or relied upon by any person(s) as legal advice. Further, reading this article does not create an attorney/client relationship between the reader and the author. If you need legal advice, it is recommended that you speak with an attorney who is licensed to practice law in your jurisdiction and practices the subject matter for which you are seeking legal advice.

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Co-Parenting with Court-Approved Apps in Tennessee: A Modern Solution for Modern Families

In today’s fast-paced world, technology plays a pivotal role in our daily lives, including the often complex realm of co-parenting. For divorced or separated parents, managing schedules, communicating effectively, and ensuring the well-being of their children can be challenging. Fortunately, Tennessee courts recognize these challenges and have begun endorsing various co-parenting apps to streamline communication and coordination. In this blog, we will explore the benefits of court-approved co-parenting apps in Tennessee, their features, and how they can help make co-parenting smoother and more effective.

What Are Court-Approved Co-Parenting Apps?

Court-approved co-parenting apps are digital tools endorsed by the Tennessee court system to help separated or divorced parents manage their co-parenting responsibilities. These apps are designed to facilitate communication, track parenting time, share important information about the child, and resolve disputes in a structured manner. The approval from the court often signifies that these apps have been vetted for their reliability and effectiveness in supporting positive co-parenting practices.

Key Features of Co-Parenting Apps

Shared Calendars: Co-parenting apps often include a shared calendar feature that allows both parents to keep track of important dates, such as school events, medical appointments, and vacations. This feature helps avoid scheduling conflicts and ensures both parents are informed about their child’s activities.
Expense Tracking: Managing shared expenses can be a contentious issue in co-parenting. Many apps provide a feature to track and split expenses related to the child’s needs, such as medical bills or extracurricular activities. This transparency helps prevent disputes over financial contributions.
Communication Tools: Effective communication is crucial for successful co-parenting. Co-parenting apps typically offer secure messaging systems that keep all communication organized and accessible. Some apps also provide features like conversation logs, which can be helpful if disputes arise and you need a record of discussions.
Document Sharing: Important documents related to the child, such as medical records, school reports, and legal paperwork, can be shared through these apps. This ensures both parents have access to the same information, reducing the likelihood of misunderstandings.
Parenting Time Logs: Accurate tracking of parenting time is essential for ensuring compliance with custody arrangements. Co-parenting apps often include features to log parenting time, making it easier to verify adherence to custody agreements.
Dispute Resolution: Some apps offer tools for resolving disputes amicably, such as mediation features or built-in conflict resolution resources. This can help parents address issues constructively without needing to return to court.

Popular Court-Approved Co-Parenting Apps in Tennessee

Several co-parenting apps have received endorsement from Tennessee courts. While the list may evolve, some commonly approved apps include:

OurFamilyWizard: Known for its comprehensive features, including shared calendars, expense tracking, and communication tools, OurFamilyWizard is widely used and accepted by courts in Tennessee.
TalkingParents: This app focuses on secure communication and documentation, offering tools to keep conversations organized and accessible.
Cozi: Although not specifically designed for co-parenting, Cozi’s shared calendar and task management features can be useful for families needing a simple solution for scheduling and coordination.
AppClose: Features includes a shared calendar, expense tracking, and communication tools. It also offers features for documenting and tracking parenting time. AppClose’s emphasis on simplicity and affordability makes it a practical option for many co-parents.
Custody X Change: Offers tools for creating and managing custody schedules, tracking parenting time, and documenting interactions. It also includes features for generating legal reports. It’s focus on legal documentation and schedule management makes it a strong choice for parents navigating complex custody arrangements

How to Choose the Right App

Selecting the right co-parenting app depends on your family’s specific needs. Here are a few factors to consider:

Features: Evaluate the features offered by each app and choose one that aligns with your co-parenting needs.
Ease of Use: The app should be user-friendly for both parents to ensure consistent use.
Cost: Some apps offer free basic versions with optional paid upgrades. Consider your budget and the value of additional features.
Court Preferences: If your co-parenting plan is court-ordered, check with your attorney or the court to ensure the app you choose meets any specific requirements.

Conclusion

Court-approved co-parenting apps offer a modern solution to age-old challenges in co-parenting. By utilizing these digital tools, Tennessee parents can streamline communication, manage schedules, and maintain transparency, ultimately fostering a healthier environment for their children. As technology continues to advance, these apps are likely to become even more integrated into family law practices, providing invaluable support for co-parents navigating the complexities of shared parenting responsibilities.

For personalized advice and assistance, consider consulting with one of our family law attorneys who can guide you in choosing the best co-parenting app for your situation and ensuring compliance with any court orders.

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A Legal Glossary – The Most Important Legal Terms

We Get It

Trust me, we get it. Legalese and all of its encompassing terms, can cause quite the confusion. All these fancy words and sayings for a piece of paper, right? Not quite.

Each word and term included here are commonly used in our office, if not used everyday. Once you start to grasp the fundamentals, everything else after comes easy, or at least, a little easier.

Terms (and conditions)

Ad Litem – If a person involved in a case is ad litem, it means they have been appointed by the court. For example, a guardian ad litem is a person appointed by the court to represent the best interests of a child.

Affidavit – An affidavit is a written statement of acknowledgement, made and signed by a person under oath. An example would be someone testifying in court, and filling out an affidavit that the statement given is the truth.

Appeal – After the court has given a final order, a person involved in the case may appeal the decision. To appeal means to request the court to overlook the evidence again, and reconsider their decision. To appeal in family court, there usually must be a “definitive change in circumstance”.

Appellee/Appellant – Appellants are those who request the court or a higher court to reconsider the information and decision. If you are unsatisfied with a court’s decision, you may request an appeal, wherein you become the appellant. An appellee is not the person who appealed, but the other party who must defend against the appeal. If you find yourself having to defend against an appeal, call our office today! We’d love to advocate for you.

Contempt – Any kind of contempt, or any contempt of court, is when you have blatantly, and willingly disregarded court decisions and orders. Civil contempt can be purged once you follow through with the court orders, whereas criminal contempt does not have a desired outcome of compliance like its counterpart, but rather actual punishment for the more severe contemnors.

Defense/Defendant – In a legal procedure, there is a person who is charging the other, and then there is the person being charged. If someone has committed a crime, they are the defendant, the person who needs defending. The defense, or defense counsel, are attorneys the defendant has either hired or been given by the state to help. In cases where there is no crime, but a legal procedure is still needed, like a divorce, the person who files for divorce would be the plaintiff, and the person who receives the divorce service letter would be the defendant.

Litigation – Litigation is any legal procedure that takes place in a court.

Litigant – A litigant is any person involved in the litigation procedures, either as council, as a defendant, or as a plaintiff.

Motion – A motion is a request for the court to make a decision about something before the litigation procedures continue.

Order – An order is a decision or final decision given to litigants involved from the court. Orders can be final, but whether it is or isn’t, they can still be contested or appealed

Petition – A petition is a document that is sent to the court to request something or request to do something for the case, usually pertaining to some sort of relief.

Plaintiff/Prosecution – Plaintiffs are the opposite of defense, and are those in litigation procedures who retain the burden of proof. That means plaintiffs, at least in civil cases, have the responsibility to prove to the court what the defendant has done, and why they should receive a punishment

Service – Notice of service is required in all legal cases. Criminal, civil, juvenile, probate, etc. all require notice of service because if a relevant person misses proceeding they might have had an impact on, the final decisions are null.

Subpoena – Subpoenas are written documents from the court, compelling witness testimony or evidence from 3rd parties. Ignoring subpoenas are considered contempt, and are punishable by fines and even, though very rarely, imprisonment.

Conclusion

Half of the words on this list are going to be found in every legal procedure. Once you start gathering all the basic information and really commit it to memory, understanding some of the terminology used in the legal field starts to get a little easier. If you’re worried you’re misunderstanding or misinterpreting something, always communicate and confirm with your attorney! If you need help with your case, call our office to schedule a consultation! We love helping families when and where we can!

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Visitation & Parenting Time in Tennessee – Breaking Down The Options

What is Visitation?

There are two terms for the subject of visitation, the first being visitation of course, and the second being parenting time. But, what’s the difference? Is there one? If there is a difference, what is it, and what is the effect of it? In this post, we’ll be exploring visitation and parenting time in Tennessee, and everything it entails.

Visitation vs. Parenting Time

In Tennessee, the courts no longer use words like ‘visitation’ and ‘sole custody’. In 2001, Tennessee courts changed terminology used to be more open and neutral, coinciding with the rising rates of 50/50 custody and more fathers taking up a childcare role. To answer the big question, visitation and parenting time are the same thing, with slight nuances. Visitation refers to the noncustodial parent’s, also known as the Alternate Residential Parent in current parenting Plans, time spent with the child. Parenting time refers to the same thing. A parent that has parenting time is labeled the Alternate Parent, or the Alternate Residential Parent. This means the child spends no more than 50% of the time with you or the named ARP. To see more about ARP’s and PRP’s, look at our other post!

Primary and Alternate Custody

Primary and Alternate custody refers to how much time is spent caring for and parenting the child. Primary custody is awarded to a parent based on factors listed in T.C.A. §36-6-106. Whichever parent fits the criteria best is awarded primary custody by the court, or parents can mutually agree when making a parenting plan. If the case is more severe, and parents cannot communicate respectfully and responsibly, a guardian ad litem can be appointed by the court. The role of a Guardian Ad Litem is to recommend to the court a ruling based on the best possible interests and outcome of the child. Children over the age of 12 can also tell the court their preference, and that will be taken into consideration.

Standard Schedules

Technically, in Tennessee, there is no ‘standard’ parenting plan or visitation schedule. Each one is curated for each specific case and its details, and additionally follows local county rules. There is no standard split, but there are common ones. Nationally, the average time a mother spends with their child a year is around 65%, compared to a father’s national average of 35%. Tennessee ranks the lowest nationally in the time fathers spend with their children, according to a 2018 CustodyXChange study, at an average of only 22%. Factoring in the fact that the most common parenting schedule in Tennessee is an 80/20 split, giving the father the 1st, 3rd, and 5th weekends of a month, as well as additional time during the summer and holidays, the numbers make sense. Other common splits however, also affect the numbers. Some parents can work out 50/50 custody, and congratulations to those who do. However, that is not feasible in every case; most other splits are 60/40, or 75/25 here in Tennessee, but there are 70/30, alongside the 2-2-5-5 custody split as well. To check out the different kinds of custody splits, click this link!

Tennessee and the Effect of a Mother State

Like many other states, Tennessee is a mother state, which means typically, child custody cases lean towards favoring the mother. When a court is deciding where to place a child, they must choose based on the best interests of the child following the Tennessee statute §36-6-106. It’s clear from looking at the numbers that courts favor mothers and women more than fathers and men in custody battles. But why is that? This is because of an outdated belief that women are child carers and homemakers, and that men are workers and breadwinners, despite there being no study or statistic showing mothers are better parents than fathers.

Conclusion

There are many different parenting plan options, and you and your family should pick one that makes the most sense for all of you. Try to factor in things like distance, transportation and education, etc. Always take into consideration your own special circumstances, and make sure your attorney is aware of them too. If you want to know more about parenting plans or Alternate and Primary parents, check out more of our blogs. If you want to call and schedule a consultation, give it a try now!

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Personal Representatives in Tennessee

What Are Personal Representatives

Personal representatives are those who represent the personal interests of the deceased. If a person passes away, the person appointed by the testator to carry out the terms of the Will is named executor. If someone has passed away without a will, the court will appoint an administrator during probate proceedings in place of the executor. Administrators and executors are both personal representatives of the deceased, and bear the responsibility of carrying out their final wishes. Both executors and administrators also bear the responsibility of closing the estate, or probate. Anytime a personal representative is appointed, it means there is a probate case happening. Probate is when someone has passed away and now someone must close their estate and distribute their remaining personal belongings.

Role and Responsibilities

Though getting to be appointed an executor or administrator is a different path, much of the responsibilities are the same. Both executors and administrators bear the probate responsibilities, including but not limited to assessing the estate, paying off debts, and distributing assets. One thing to note is that executors are responsible for carrying out final wishes, whereas administrators are not, because the decedent left no will and no wishes. Where executors distribute assets according to the will, administrators distribute assets according to Intestacy laws here in Tennessee, covered in T.C.A. § 31-2-101.

Compare and Contrast

Despite both positions maintaining the same general responsibilities, there are slight differences between the two. Both must go through the probate litigation procedures, attend court hearings, account for assets, and distribute them accordingly, but where an executor distributes according to their Will, administrators follow Tennessee Intestacy laws. Say a woman, Tessa, passes away. Tessa has no children, and is 27 years old. On her commute to work with 2 of her coworkers, the three are hit by a drunk driver in a pickup. According to Tennessee Intestacy laws, distributing her assets according to T.C.A. § 31-2-101 is like so:

First, because Tessa is only 27, she didn’t make a will, so the court appoints an administrator to distribute Tessa’s belongings. Then the administrator must find and contact Tessa’s parents’ to inform them of her passing (if they do not already know) and inform them that they are her heirs-at-law. Tessa’s mother and father are divorced, but both are still alive, so the administrator must decide how to split the assets equally among the two.

Now let’s take the same exact situation, but where Tessa did make a Will:

Tessa, despite being 27, already wrote up an early will. During the initial hearing, her Will is validated, and the court makes her mother the executor, like she requested. In her Will, Tessa requests that her physical belongings, like her car, jewelry, and clothes, are given to her siblings. Tessa’s executor, her mother, gives Tessa’s sister her clothes and jewelry, and gives Tessa’s brother her car, so that the belongings are split equally. Tessa also requests any money in her checking account be divided between her brother and sister, but requests that any money in her savings and work retirement/401k be put in her parents’ retirement fund.

These two situations are similar, and yet still distinctly different. Despite all other factors being the same, because Tessa had a Will, the outcome of her case was drastically different. When Tessa passed away Intestate, the court and her family had no idea what her final wishes could have been, and had no idea how she wanted her belongings to be distributed. However, in the opposite situation, where she did have a will, her family all knew what she wanted to go where. Tessa’s family can grieve in peace knowing they fulfilled their daughter’s final wishes, and Tessa can rest peacefully knowing her things went to her family just how she wanted them too. Comparing the situations, we can clearly see the small nuances that make them different from one another.

Living Representatives

A form of representation, guardianship and conservatorship pertain to watching over the general wellness of another individual, making sure they have all their basic necessities met and are in the best possible state of mind. Guardianship and conservatorship, like executors and administrators, have a distinct key difference. Guardianship is given to those deemed too young to take care of themselves, whereas conservatorship is given to those too old or incapable of taking care of themselves. Like executors and administrators, the responsibilities pertaining to the two roles are very similar. Medical visits, appropriate nutrition, clothes, and education are all responsibilities conservators and guardians have, alongside financial responsibilities over the estate of those they are taking care of. Those being taken care of are allowed to contest guardianship or conservatorship if they want to, and the court only determines conservatorship and guardianship in the most severe cases, as the decision is limiting for the conservatee and guardee in regard to personal choice and preference.

Conclusion

Personal representatives are vital and necessary for the smooth flow of probate, but holding the title comes at a cost. Losing your loved one is already difficult, and if you need help getting a foot in the door, call our office today. Our seasoned attorneys have years of probate experience and would love to help you.

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Dependency & Neglect – What is it? Who does it affect?

Intro

What is dependency and neglect? What does it mean in legal terms? This post will cover some of the basic information of dependency and neglect in court so that you have a fundamental understanding of what is going on in your trial. It’s important to understand what’s going on, rather than going with whatever your lawyer tells you. At Hairston & Associates, we value your opinion and do everything we can to make sure you feel heard.

What is Dependency & Neglect?

Dependency & neglect is any abuse of a child that endangers their wellbeing. A court will determine dependency and neglect when a parent is observed to take improper or unlawful care of a child. A court has the ability to transfer custody of a child to someone else if they’re found being dependent and neglected, and can even terminate the rights of parents if it’s found to be in the best interest of the child. Often, the Department of Child Services (DCS) will take children out of their parents improper and usually endangering care, and place them in close relatives’ homes for better, safer care. A child that is dependent and neglected, pursuant to T.C.A. §37-1-102(b)(13) is a child:

Who has no parent or custodian around to support them
Who has a parent or custodian who is found incapable of supporting the child due to reasons like; mental incapacity, cruelty, immorality, or depravity
Who is under an unlawful or improper care from any federal, state, or local organization, institution, corporation, agency
Who has been kept out of school willfully
Who has a parent or custodian unwilling to provide medical care
Who has been found doing something unlawful or illegal due to lack of supervision
Who has been found in such a state of want or need as to injure or endanger themselves or other children
Who suffer from physical abuse or neglect
Who has been under the guardianship of a non-family member for six (6) consecutive months, and that person has not sought legal custody
Who has been allowed or encouraged to view or participate in explicit materials and acts
Who has been the sole financial provider and physical caregiver for at least 18 months

Children who are dependent and neglected fit one, or often more, of these criteria. Children who are dependent and neglected also face Adverse Childhood Experiences, or ACE’s. ACE’s affect children’s cognitive, emotional, mental, and social development. If a parents’ rights have been terminated, DCS will take legal custody of that child, and place them in foster homes until they are adopted. Around 205,000 children enter the foster system annually, compared to the 215,000 that leave the system. Of that number, 47% are children who go back to their primary caregivers, 25% are children being adopted, and 9% are children who age out of the system.

What Happens to a Child if They’re Found Dependent & Neglected?

Because of the problem neglect poses on children, there are solutions. Children who’ve been found dependent and neglected are most often placed with the alternate parent or other relatives until their primary parent corrects their actions and gets back up on their feet. If a child has been in temporary care of another, that person can adopt the child. However, adopting children who already have legal guardians isn’t possible. If you want to adopt a child through the foster care system, and their parents still have a legal guardianship over them, you can petition for the termination of the parents’ rights. Following guidelines set out in T.C.A. §36-1-113, a parents’ rights can only be terminated if it has been proven to the court that that decision is in the best interest of the child.

However, what is not accounted for is the long and short term effects of living dependent & neglected as a child. Or, if they were dependent & neglected and put in the foster system, then adopted? What are the effects of the foster system in America, but more importantly, right here in Tennessee. As stated before, children who are living dependent and neglected often face other difficulties in their lives. ACE’s, or Adverse Childhood Experiences, are “potentially traumatic events that occur in childhood”. ACE’s have a lasting effect on the mental and physical well being of children, and these effects can last years, all the way to adulthood, even affecting their own children. ACE’s can increase your risk for sexually transmitted diseases, maternal health problems, and suicide. Your risk of cancer, diabetes, heart diseases, depression, stress, and toxic stress also increase the more you experience ACE’s. Prolonged toxic stress can impact the growth and development of a child’s brain, and in turn affects the attention span, learning, and decision making skills of the child.

What Can I Do if my Child is Found Dependent & Neglected?

If the court has decided your child is in fact, dependent and neglected, your child is either going to be placed with your co-parent, your co-parent’s family, your family, or if none of them are able and willing, a safe environment in the foster system. The child will be in that home for the remainder of the court proceedings, and until you have corrected your actions. You can appeal the charge, however you must bring new, clear & convincing evidence. Regardless of preferences of anyone, the court will make decisions based on the best possible interest and outcome for the child. When transferring custody or establishing guardianship, the adult must fit the criteria set forth in T.C.A. §36-6-106 and T.C.A. §34-1-102, respectively.

Conclusion

Dependency & Neglect is a tough topic, both to learn about and to have to go through. Children are the most vulnerable, and every parent should do everything they can to give their child what they deserve. Dependent and neglected children have a higher risk for mental, emotional and physical ailments, like toxic stress, depression, suicide, cancer, or heart diseases. It’s unfair to put a child in this situation. If your own child is experiencing any of these situations, call Hairston & Associates so we can help, there’s nothing we’d rather do.

Foster statistics (https://www.aecf.org/blog/child-welfare-and-foster-care-statistics)

ACE statistics (https://www.cdc.gov/aces/about/index.html)

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Primary and Alternate, what do they mean? – Exploring the deciding factors in custody plans

What is a Primary Parent

Primary parents, or primary caregivers, are people who take care of or watch the child(ren) for at least 50% of the time. A primary parent can be adoptive parents, legal guardians, as well as both mothers and fathers. It’s important to note that even if there is a 50/50 custody arrangement, a primary parent must be named for legal purposes. Primary and alternate parent responsibilities do not differ much in type, but rather volume. Deciding who is the Primary parent and who is the Alternate parent is decided in court. Custody and child support cases are both heard in Juvenile, and custody battles happen with or without a previous marriage. Primary parents shoulder much of the weight of taking care of their child(ren), taking them to school, feeding and clothing the child, setting up medical and dental visits, etc. and they are almost always doing this with a full time job! Parents really are superheroes.

The Role of an Alternate Parent

The role of any parent is to support their child. The role of an Alternate parent should be to support the primary parent in providing care for the child(ren). Both the Alternate and the Primary parent should encourage the child(ren) to continue building a relationship with the other parent. There’s no real ‘role’ either parent to play, you just do what you think is best for your child and their future. Alternate parents should aim to be flexible, and try their best to continuously update the primary parent. Try to plan tasks and activities for you and your child(ren) to do together. Being there and doing your best is what is most essential, and your child will come to appreciate it and you. It’s also important to note that most alternate parents are the ones paying child support, where the primary parent is receiving it.

Types of Parenting Arrangements

Tennessee is a mother state, meaning when in court, the judge or ruling is almost always in the mother’s favor, which also means you fathers are gonna have to work extra hard to win over the court and swing the case in your favor. Tennessee most commonly has 80/20 splits, favoring the mother and giving her around 280 days, and the father 80. It is rare, but 50/50 custody splits happen, as well as 60/40 and 70/30. Again, in Tennessee these splits favor the mother, because Tennessee is a mother’s state, and actually ranks bottom on a list of states measuring the amount of time children spend with their father, check out that statistic here!

Working in Tandem

In 2001, the state of Tennessee officially started using legal language like “primary parent” and “parenting time,” rather than their previous counterparts, “sole custody” and “visitation”. The gentle language used denotes a significant change in the way Tennessee goes about their family legal procedures. The quality of care received by the child(ren) impacts their social and cognitive growth, so work with your co parent in accordance to your own parenting plan for the well-being of your child. If you ever disagree with a decision the co parent makes, always be sure to address it and communicate how you feel to the best of your ability. Pursuant to §36-6-402, in the state of Tennessee, an attempt at a resolution is required in civil disputes, so if attempting to speak to the co parent does not prove to be effective, the next step is mediation.

Conclusion

Our attorneys here at Hairston & Associates have mediation certification and experience! If you have an open child custody case, contact us today and see how we can help you!

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Intestate Probate – How estates are settled without a will

Probate Proceedings

Probate proceedings and Probate court are a special, separate type of law that oversees validating the Will of a deceased person, and dispersing their assets according to their wishes. However, sometimes, there are too many tragic accidents, and that can’t happen. Though probate is a separate division of law, it is not any harder or easier than another. The difficulty of a probate case is measured by the size of the estate, meaning the more assets and debts there are to account for, the longer the process will take. Most probate cases are anywhere from 6 months to 2 years, and can be even longer if the estate is larger. Contesting a probate case, or having someone contest yours, can elongate the process as well. In every probate process there are always the same general steps:

Proving the will in probate court, if there is one
Making a comprehensive inventory of all the decedent’s properties, assets, and debts
Dividing and distributing assets leftover after amortization to the family or heirs-at-law

No matter the type of probate, the size of the estate, every probate case follows the same general guidelines. In Testate probate, it’s much easier to follow this routine, as a Will provides a strict rule to follow. In Intestate probate however, the story is just slightly different.

Intestacy Probate

In Intestacy Probate, there is no will, so the first step, proving a valid will, is out. Instead, there will be a hearing with the court where the administrator of the estate will be named and officialized. This hearing is equivalent to a hearing in a Testate probate case where the will is validated and the executor is officialized. In both cases, the executor and administrator must pay off any outstanding debts, This can be done with inherited assets, by selling off properties, or out of pocket. In Intestate probate, because there is no will of wishes to follow after death, estate division is in accordance with Tennessee statute §31-2-101. In Intestacy the order assets would be divided and distributed is like so:

If the deceased had a spouse or children, the assets would first go to them. If a spouse and no children, the spouse would inherit 100% of the assets and properties. If there is a spouse and a child, the estate would be divided evenly among the two. If you have a spouse and 2 or more kids, the surviving spouse gets either ⅓ of the estate, or the children’s equal share, whichever is greater. If the decedent’s own child passed away after having a kid, the grandchild would inherit the deceased assets in place of their parents.
If there is neither a spouse nor a child, the estate would pass to the parents of the deceased. If the parents have already passed away themselves, it would go onto the siblings of the deceased. If they were an only child, the estate would pass back up the generational line to the grandparents.
On the off-chance that everyone has passed or there is no living family in the first place, the State would look for the closest relative cousin. If even that has failed, the estate is just turned over to the State. It’s important to note that these laws must be strictly followed, and because of that, state courts don’t particularly care about something like cutting someone off or a damaged relationship.

All this to consider, it makes you think how much easier it is to have a will. It makes it easy on your family if you pass and they have to grieve you. It may not make your life easier but it brings peace of mind knowing that if something were to happen to you, your things are safe and will go where you want them to.

Assets and Property types

It’s important to understand types of assets and properties. Some accounts and properties are not subject to probate court, whereas some or most are. Probate assets and non Probate assets are distinctly different. Probate assets are assets the Probate court will use to pay off debts and divide between your heirs. Non Probate assets are just that, assets not subject to Probate. This includes, but is not limited to; any jointly owned property or account, any account with a named beneficiary, POD/TOD accounts, life insurance, retirement, etc. Probate assets would be the opposite, any account or property in just your name that does not have a named beneficiary. Vehicles, jewelry, even boats can also be Probated. Another important piece of information is knowing property types. Certain property types qualify as Probate and Probate assets. The three different property types are;

Exclusive property ownership: Exclusive property ownership is when the decedent exclusively owned the property, meaning their name was the only one on the deed.
Joint property ownership: Joint ownership is when two or more people share the property together, and both or all names are on the deed.
Trust property ownership: Trust ownership is when the decedent names a beneficiary for the property if they pass. The trustee, or the property receiver, would have trust ownership over the property.

Conclusion

There is so much more to explore in Probate, it’s’ such a niche division not many know about. The more information you have access to the less you will stumble on this journey. Dealing with probate proceedings are another weight to add to losing your loved one. That’s why our office is proud to have probate attorneys that work hard for each client, individualizing each case and experience to cater for all your needs.

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Understanding Probate – Roles and Responsibilities

What is Probate Court?

Probate Court is a special court that oversees validating the will of a deceased person and dispersing their assets according to their wishes. In a probate proceeding, an appointed executor or administrator will execute the probate process. Most of the probate process does not actually take place in a courtroom, rather the executor or appointed administrator will take care of the process on their own or with counsel and officialize it in the courtroom. If the probate process does happen in a courtroom, it is usually because the will has been contested or there are debt claims from outside parties. Debt claims are settled either between the executor, or the court will give a ruling if no agreement is made. Contesting a will however, will elongate the court procedures and make the process seem like a mountain too big to climb. In this article you will learn a little about the probate process, factors that may affect the process, and other relevant information.

What is the Probate Process?

The probate process always has 3 basic, necessary steps;

Validating the will, if there is one
Paying off any existing outstanding debts
Distributing the leftover assets.

If the decedent left a will, they will name the executor in it. The executor is responsible for executing the decedent’s will and carrying out the final wishes. They are responsible for filing the probate petition with the local county probate or chancery court. To file a probate petition, the executor must gather all relevant documents; last will, death certificate, letters testamentary, and notice to creditors and family members. Once submitted and reviewed, the court will schedule a hearing where all those given notice are free to view, and where other family members are given the opportunity to contest the will. If there was no will, this is where the court would appoint an administrator, usually a close family member. When the executor, or court appointed administrator has been officialized, they can start to tackle the probate procedures. First, the executor must compile a comprehensive list of all assets and debts the decedent once owned. This includes things like real properties, land, vehicles, jewelry, accounts, trusts, etc. in their name. Once that step has been taken, the executor can start to pay off any debts your loved one may have had. The debts must be claimed within 60 days after service (or notice of death), and any claimed debts must be paid off before the probate process can move on. Your family can use your assets to do so if they are unable to pay the debts out of pocket. When that is done, you can go ahead and schedule a final hearing where the court will review the presented information and assist in splitting the assets between the heirs. The executor also bears the responsibility of providing the court a final accounting that details any and all transactions made by the executor.The Court will finalize everything and your petition will have its Final Approval. One less thing to worry about during this hard time.

Wills

The existence of a will is crucial in probate cases. If there is one, it must be proven to be both the decedent’s and valid. Families can contest the execution of a will, the validity of a will, they can also contest the named executor in the will and petition for someone else to be appointed. A will is important because it gives an outline to how the deceased wanted their assets split. Wills are guiding documents that ensure the settlement process follows their wishes. Not only do wills protect your assets when you leave, but they provide clarity for your loved ones amidst the emotional turmoil.

Vocab & FAQs

There are some words you should know, as they define how a probate case will be handled. Whether or not they apply to you, it’s good to have the knowledge. These words will help you better grasp what you’re reading:

Probate Assets – Probate assets are assets subject to probate after you’ve passed away, things like real properties, cars, your bank account and savings account, and any valuable personal property
Non-Probate Assets – non-Probate assets are just that, assets that cannot be subject to probate by the court. This includes, but is not limited to, things like jointly owned properties, bank accounts, trusts or accounts with named beneficiaries, or a decedent’s partner’s properties
Testate – When you die in Testate, you have died with a valid will to help disperse your belongings. After it is validated in a courtroom, your family must disperse your belongings according to your wishes. Wills ensure you get what you want even after you have passed away.
Intestate – When you die intestate, you die without a will, meaning the court will help decide how to split your assets. They will appoint an administrator, and the administrator will carry out their role according to the factors set forth in 31-2-101.
Testator – Testators are people who have made a valid will with their legal counsel. It is ‘any person who makes a will.’
Executor – The executor is named in a testator’s will. They have the responsibility of carrying out and executing their loved ones final wishes. A hard, heavy burden.
Administrator – Administrators are court appointed executors. They are usually appointed when there is no will left by the deceased, or when families have contested the named executor. If the court decides to appoint an administrator, it will most likely be a close family member.

Each of these words are going to be used in this article. It’s important to understand what you are doing, especially when it pertains to legal matters, as you wouldn’t want to get arrested for a crime you didn’t even know you were committing. There are other things you should be aware of when involved in a probate case, like the intestate order of inheritance. the Right of survivorship or Tenants in common. The intestate order of inheritance, according to § 31-2-104 is as follows; Surviving spouse of the deceased, surviving child(ren), then parents of the deceased, siblings of the deceased, and then finally, if no previous family member is alive, both the maternal and paternal grandparents of the deceased would inherit leftover assets. The Right of Survivorship pertains to how joint ownership of real property would transfer to the other owner without passing through probate, whereas tenancy in common would pass down ownership to heirs through without the probate process. There is always more you can learn to ease the process of losing your loved one, however we recognize the difficult time it may be and are more than equipped to help you and your family through it. Give our office a call and see what steps we can help you take to move forward.

Fact Patterns

There is a big difference between testate and intestate probate cases. Let’s look at some and determine the what would happen in each separate case:

For example, Eleanor and James are sixty-three and sixty-seven, respectively. They had 3 children together over their 30 year long marriage; Kaylee, Josh, and Frankie. When James passed away, Eleanor was his named beneficiary, so any accounts he owned with beneficiaries were not subject to probate. However, his other accounts and their estate was, as she was not the beneficiary, they did not jointly own his other accounts, or the property. Because James passed away intestate, we follow the Order of Inheritance pursuant to § 31-2-104, and the estate would pass to Eleanor, then to the children when she passes.
Say it’s been 15 years since James passed. Eleanor passed soon after him, and besides the estate, all the assets were split evenly between the 3 children. The parents’ home, left to the youngest, Frankie. Because the home is on the beach, the 3 siblings have been using it as a family vacation house. One year, they are spending the summer together with their families, going to dinner when a semi truck T Bones their car, killing Frankie and Josh. Frankie was the youngest and single, so she had no partner or children for the house to pass down to, and because of this, the house was split by the court between the two remaining siblings in joint tenancy.
Here’s another example, Clara is a 26 yr old pediatric nurse. She is on her way home from a 12 hour shift when she accidentally falls asleep at the wheel and veers off the bridge. Clara had a baby in the beginning of college, and has been taking care of him since. Clara, despite being young, had made a will because of her son, and named her parents both heirs and executors, asking them to take in her son should something happen to her. Clara had set up a trust for her son, putting money in it in small increments. Because it’s a trust with her son as a named beneficiary, the trust was not subject to probate, whereas her other assets and belongings were. Her parents are the named heirs, and inherited her leftover assets after probate.

Conclusion

The biggest takeaway from this article should be, always write a will. If you have a valid will, all your assets and properties will be ensured protection, and if you have a will, your things will be dispersed as you want them to be. Wills make the process quicker and easier, especially during a time of loss. There are always steps you can take to smoothen the process, and our firm is here to take those steps with you.

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Empowering Parents – Tools for Enforcing Child Support

What Can You Do

The first thing you should do when your co parent is not paying Child Support is open a line of communication. Try to first understand why they were not paying their obligated child support. If you cannot get into contact with the other parent and are still in the midst of legal procedures, you should file a Motion To Compel or even a Petition of Contempt. These filings are the easiest and most simple way to make somebody comply with court orders such as child support. However, these are short term solutions that are not available for every person getting paid child support. Here are some other resources and actions you can take to enforce your child support order.

First Things First

Remember to always be courteous and respectful to the other parent, even when it’s hard, and even when they aren’t there. If you’re unable to get into contact with your co parent and are not in an active court case the first thing you should do is report the delinquent parent to DHS or your local county child support office, they will assist in helping you take steps to enforce your child support order. Depending on the case and situation, the officials will choose the best action to take to enforce the order. Of course, each case is unique in its components and elements, and will be considered carefully before a course of action is taken.

Legal Procedure

In litigant procedures like divorce, child custody and support are determined in parenting plans pursuant to T.C.A. 36-6-404. If you file a petition or motion, the other parent may contest petitions or motions with council, or pro se. Courts in Tennessee favor neither the mother, nor the father, but rather the child. In a juvenile case, the courts will follow through with a plan of action that best supports and benefits the child(ren) and their wellbeing. Modifying an existing parenting plan is always possible and either parent can go back and file for a modification of a parenting plan. If your child is not getting the care they deserve, consider pursuing legal action. Give our office a call for the best chance.

Enforcement Options

You may file a Petition of Contempt in your active case if your co parent is not paying the ordered child support, or you may open up a new case if you do not have one already. Other options include, but are not limited to:

Wage Garnishment – When the delinquent parent’s employer withholds a percentage of their check to give to the county to send to the custodial parent
Intercepting tax returns – IRS will deduct a percentage of tax returns to offset outstanding balances. Any parent who owes more than $500 dollars to the support case, they are automatically subject to the “Tax Refund Offset Program.’
Liens on properties – DHS can issue liens on any properties and assets in your name. If you owe child support and withhold those funds knowingly and needlessly, the county can issue a lien on your assets, like a home, a car, a boat, bank accounts, etc.
Seizing properties – DHS is capable of data matching and will do so when necessary. If there is an active lien on a property and the non-custodial parent still withholds payment, the county can seize and sell properties to fulfill the child support obligation.
Seizure of bank accounts – DHS, using the same data matching technology can also freeze or seize bank accounts, bonuses, retirements, social security, disability, retirement etc. Anything you have financial ownership of is subject to seizure or deductions.
Seizure of licensure – DHS is also capable of freezing licenses. Driver’s licenses are most commonly frozen, of course, but other licenses like medical or legal practice licenses, aviation licenses and more are all subject to seizure when you knowingly and needlessly avoid your child support obligations.

Resources

There are so many resources available for single parents, especially single mothers. There are resources available for parents who’ve broken up but understand the importance of stepping up to raise their child. These are just some;

TN Child Support Guidelines
Local Child Support offices and agencies
TN Child Support Fact Sheet
Child Support Calculator
Printable Child Support filing documents

Summary

Parents missing or skipping out on their child support obligation is all too common, and thankfully there are resources available and actions you can take to pursue what’s best for your child. It takes a village to raise a child, let us be a part of yours and give us a call today! We here to help and support you through your legal procedures in any way we can.