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What is the Role of Probable Cause in a Tennessee Drug Possession Case?

Drug possession cases hinge upon whether an individual knowingly had possession of an illegal substance or paraphernalia on their person or in an area that was under their control, such as their home or car. Officers must perform a search and find illegal substances as the first step in proving possession. However, law enforcement agents must conduct the search in accordance with your Fourth Amendment rights for the evidence to be admissible in court. If the officer did not have probable cause to obtain a warrant or to perform a warrantless search under one of the legally recognized exceptions, your legal team may be able to have the evidence suppressed. An experienced Tennessee drug possession defense lawyer can examine your case and ensure your Constitutional rights are upheld.

How Does the Fourth Amendment Protect You From Illegal Searches and Seizures?

The Fourth Amendment safeguards individuals in the U.S. from unreasonable searches of their homes, persons, belongings, and other private items. To conduct a legal search, law enforcement officers usually must obtain a warrant by establishing probable cause, supported by oath or affirmation. Warrants must describe in detail the place to be searched and the persons or things to be seized to be valid. Even with a warrant, the search must still be “reasonable” under the Fourth Amendment, and the scope and manner of the search must be clearly defined.

How is Probable Cause Defined?

Probable cause for a search in drug possession cases is a fact-based belief by a law enforcement officer that someone has committed or is about to commit a crime.

Probable cause is a higher standard than “reasonable suspicion” and requires more concrete evidence that a crime has been committed. The officer’s belief must be more than a guess and be based on specific, articulable facts that make it more likely than not that a crime has occurred and evidence will be found. General suspicion or knowledge of a person’s criminal history alone is insufficient. Police officers can use observational evidence, information from witnesses or informants, circumstantial evidence, and evidence based on police expertise to determine probable cause.

What Are Examples of Probable Cause in a Drug Possession Case?

Police must establish probable cause to search for drugs during a traffic stop, while responding to a call, or in other circumstances when interacting with the public. The existence of probable cause is a frequently disputed topic in drug possession cases because it is often based solely upon the officer’s recollection of events in their report.

Commonly cited examples of probable cause which could lead to a search for drugs include:

• Smelling marijuana or other illegal substances on the individual or their vehicle.
• Noticing behavior or physical signs that could reasonably indicate the use of drugs, such as dilated pupils or slurred speech.
• Seeing drugs or paraphernalia out in the open in a vehicle or home.
• Receiving a confidential tip that the individual was possessing, using, or selling contraband.

Under What Circumstances Can Police Officers Search an Individual’s Belongings Without a Warrant?

Over the years, the Supreme Court has upheld some exclusions to the warrant requirement. However, in the same way that showing probable cause is necessary to obtain a search warrant, the officers involved in a warrantless search will need to demonstrate that they had a legitimate reason to believe the individual had committed or was going to commit a crime.

Instances where an officer with probable cause may be justified in conducting a warrantless search may include:

• When illegal objects are in “plain view”: If an officer is lawfully present and can immediately see incriminating evidence, they can seize it without a warrant. This exception applies to items on private property and in public areas.
• Under “exigent circumstances”: If officers believe that evidence of a crime could be destroyed or the public’s safety is potentially at risk, they may have the right to perform a search.
• When the search is incident to arrest: When making a lawful arrest, the police can conduct a warrantless search of the arrestee’s person and the area within their immediate control to ensure no weapons are concealed and to preserve evidence that may be needed for trial. Crucially, an arrest must be made before the search may occur, meaning this exception does not apply to non-criminal infractions, such as traffic citations.

Very few situations exist where probable cause may not be required for a search. For example, if an individual willingly gives their permission for officers to search their home, car, or belongings, then they no longer possess the reasonable expectation of privacy that the Fourth Amendment protects. However, if consent to a search is coerced or obtained through threats, it is not legal, and any evidence obtained could be excluded from the court case. Individuals on probation may be subject to searches at any time as part of the terms of their release. The same exclusion applies to individuals with an active arrest warrant.

What Can You Do if You Were Subjected to an Illegal Search?

Evidence obtained through an unreasonable or illegal search may be barred from court under the “exclusionary rule.” The exclusionary rule provides a remedy for unconstitutional searches and seizures and deters police misconduct. A defendant can file a motion to exclude evidence obtained through a search conducted without probable cause. The defendant must demonstrate that the officers did not act in “good faith” and blatantly disregarded the Fourth Amendment rules for a search and seizure.

It is critical to take prompt legal action if you believe you have been subjected to a search for drugs that violated your legal rights. Contact the Law Office of Hibbeler & Associates today at 931-236-2711 to schedule a free 30-minute case evaluation and learn about your options.

What Rights and Protections Are Provided to Tennessee Juveniles Accused of Crimes?

The legal process for a juvenile accused of a crime differs from the system for an adult offender. The juvenile laws in Tennessee are intended to ensure youthful offenders get the help, care, and guidance they need to become responsible, law-abiding adults. The state’s laws also aim to protect society from juvenile criminal conduct. One key aspect of the juvenile court system is that the outcomes of the cases do not leave a permanent mark on the individual’s adult criminal record. However, some parts of a juvenile record may be available to the public unless the individual seeks to have them expunged after turning 18.

As with the adult criminal court system, the juvenile court must uphold the accused offender’s constitutional rights and ensure a fair hearing. However, the specific legal rights afforded to a juvenile accused of criminal activities differ somewhat from those granted to an adult. It is vital to seek the counsel of a knowledgeable juvenile defense attorney as soon as possible after an arrest to ensure all applicable rights are upheld.

Do Juveniles Have a Right to an Attorney?

According to Rule 205 of Tennessee’s Rules of Juvenile Practice and Procedure, juveniles have the right to legal representation at all stages of a delinquency proceeding. They also have the right to an attorney if they have been alleged to be unruly and face the possibility of removal from their home. The court must immediately inform the minor of their right to an attorney. If a juvenile cannot afford an attorney or their parents or guardians refuse to pay for representation, an attorney will be appointed by the court.

Surprisingly, Tennessee allows the accused juvenile to waive their right to an attorney. However, very stringent rules surround this process because waiving the right to legal counsel can have serious implications for the accused individual. The court must explain to the child in language appropriate for their age what waiving their right to representation means.

For the waiver to be viable, the child must knowingly and voluntarily decide to refuse an attorney. The waiver must be made orally and in open court after the child has consulted with a knowledgeable adult who is capable of providing unbiased information. The juvenile and the judge must further confirm the decision in writing. The child still retains the right to change their mind about the waiver at any time during the proceedings and seek legal counsel.

What Other Rights Does a Tennessee Juvenile Have After an Arrest?

Being accused of a crime at any age can be frightening and stressful, but for juveniles, it can be particularly distressing. It’s important to remember that anyone facing allegations of wrongdoing is innocent until proven guilty, and all law enforcement officers and judges must act in accordance with Tennessee law when handling the case. Some of the fundamental rights of accused juveniles include the following:

• Right to a timely hearing: If a juvenile is detained, a detention hearing must be held within 72 hours, excluding weekends and holidays.
• Right to understand charges: Juveniles have the right to be informed of the charges against them. This includes understanding the nature of the accusations and the potential consequences if found guilty.
• Right to avoid self-incrimination: Juveniles have the Fifth Amendment right to remain silent and not incriminate themselves.
• Right to a fair trial: Juveniles have the right to a fair trial, including the right to confront and cross-examine witnesses.
• Right to appeal: If a juvenile is found guilty, they have the right to appeal the decision.
• Right to seek expungement: A juvenile who turns 18 can petition the court to expunge their juvenile record if he or she is one year removed from the most serious offense and has not been convicted of a crime.

If an older juvenile commits a serious crime, the juvenile court may choose to transfer their case to an adult criminal court for trial. Upon the transfer of the case, the juvenile will be afforded all the same rights as an accused adult offender.

How Does a Juvenile Hearing Differ From an Adult Hearing?

Both adult and juvenile hearings are conducted in a courtroom with a judge, but unlike adults, juveniles sometimes have the right to a closed hearing that is not open to the public. Closed hearings always occur when the case involves dependent or neglect proceedings. The juvenile court also has the discretion to exclude the public from some or all of the proceedings for youths accused of unruly or delinquent acts. However, the juvenile or their legal representative must request a closed hearing and provide compelling evidence demonstrating why it is necessary for the situation.

Adults charged with criminal activities have some rights that are unavailable to juveniles. These include the right to bail and the right to a jury trial. Juvenile hearings only occur before a judge, and a bond may be set to ensure the juvenile’s attendance at further hearings. Often, a juvenile will be released to their parents or guardians until their adjudication or disposition hearing. If the judge finds that the juvenile engaged in the actions they have been accused of, they will learn about the consequences during this hearing. Juveniles will not be sent to a county jail, although they may be held in a juvenile detention facility if their crime meets the criteria for secure custody.

Why is it Vital to Enlist the Services of a Juvenile Defense Attorney?

It can be intimidating to navigate the juvenile court system as a youth accused of a crime. An experienced juvenile defense attorney can ensure you are treated properly after your arrest and not intimidated or coerced into acting against your best interests. Fully understanding your rights is vital to reaching the best possible outcome in your case and preventing the accusations from derailing your future.

If you are a juvenile facing criminal accusations or the parent of a minor experiencing legal difficulties, the Law Office of Hibbeler & Associates can provide clear, compassionate guidance and strong representation. To learn more about our services, contact our office at 931-236-2711 to schedule a free 30-minute case evaluation.

What is a Postnuptial Agreement in Tennessee?

A postnuptial agreement in Tennessee is a legally binding document created after a couple marries or enters a civil union. This agreement is used to settle various financial and property matters in the case of divorce or death. Unlike prenuptial agreements signed before marriage, postnuptial agreements are signed after marriage.

In Tennessee, these agreements must be in writing, signed by both spouses, and notarized to be deemed valid. Because a postnuptial agreement is regarded as a contract under state law, Tennessee courts require unambiguous language within the agreement. They will scrutinize the document to ensure fairness and equity for the parties involved.

It is highly recommended to consult with a knowledgeable postnuptial agreement attorney to ensure your agreement meets your needs and will be legally enforceable if necessary. When properly executed, postnuptial agreements can provide clarity and protection for couples regarding their financial affairs and property rights.

What Are the Benefits of Drafting a Postnuptial Agreement?

No one enters into a marriage anticipating a divorce. However, with recent CDC statistics showing a Tennessee marriage rate of 7.6 marriages per 1000 residents and a divorce rate of 3.3 divorces per 1000 residents, it appears almost half of all couples in the state may eventually have to navigate the emotional and legal challenges of a split.

A postnuptial agreement can provide legal safeguards for both parties, especially in scenarios where one spouse is financially dependent on the other. Having an agreement in place can simplify the divorce process by providing legal guidelines for property division and other aspects of marriage dissolution, reducing uncertainty during divorce proceedings, and avoiding protracted and expensive litigation.

However, postnuptial agreements are not necessarily entirely focused on divorce proceedings and may even help couples maintain a healthy relationship. Having a contract that outlines each spouse’s financial responsibilities and clarifies what will occur in the event of a divorce may prevent common disagreements over money or other issues.

After completing the agreement, both parties will understand the consequences of a divorce and may be more motivated to compromise to avoid those outcomes.

Additionally, postnuptial agreements can be tailored to address specific concerns and protect individual interests, offering a personalized approach to managing assets and liabilities within a marriage.

What Topics Are Often Covered in This Type of Agreement?

A postnuptial agreement in Tennessee has a significant legal effect as a binding contract that addresses property rights, financial responsibilities, and other vital aspects of a couple’s relationship. When drafting a postnuptial agreement, it is crucial for both parties to seek legal advice to ensure that the final document is comprehensive, fair, and legally enforceable. The document must be carefully and thoughtfully created to meet the unique needs of the situation. While each agreement will vary, some commonly included provisions are as follows:

• Property division: Clearly outlining how property and debts will be split in the event of divorce or death.
• Alimony: Specifying the amount, duration, and conditions for any spousal support payments.
• Financial responsibilities: Defining each spouse’s financial obligations during the marriage and in case of separation.
• Inheritance rights: Addressing how inheritance rights will be handled, especially if one spouse wants to protect certain assets for children from a previous relationship.
• Business interests: Detailing how business interests, investments, or ownership stakes will be managed or divided in case of divorce.
• Legal fees: Addressing how legal fees and costs related to enforcing the agreement or challenging its validity will be handled.
• Modification and termination: Including provisions on how the agreement can be modified or terminated under specific circumstances.

What Issues Cannot Be Addressed By This Document?

Under Tennessee law, a postnuptial agreement cannot define child custody and child support payments. The court must address these topics at the time of the divorce, and the decisions will be made based on the child’s best interests. All other terms within the agreement must meet the state guidelines for a binding contract. Your attorney can advise you on specific concerns and topics you may be considering including.

What Steps Must You Follow to Obtain a Valid Postnuptial Agreement?

To obtain a postnuptial agreement in Tennessee, a married couple must follow a process that ensures the contract is legally valid. The steps typically involved can include:

• Seeking legal representation: Each spouse should have independent legal representation to ensure their rights are protected and they completely understand the terms of the agreement.
• Full disclosure: Both spouses must fully disclose all assets and debts. This transparency is crucial for the agreement to be considered fair and entered into knowledgeably by both spouses.
• Drafting the agreement: The postnuptial agreement must be in writing and clearly detail the division of property and debts, as well as any alimony provisions and other pertinent topics.
• Review and revision: Before finalizing, the agreement should be thoroughly reviewed, and any necessary modifications should be made to ensure that all terms are accurate and reflect the couple’s intentions.
• Voluntary agreement: The agreement must be voluntarily entered into, without coercion, duress, or undue influence. The contract may be deemed invalid if there is evidence of pressure or lack of consent.
• Execution: Once the agreement is finalized, both parties must sign it. The signatures should be notarized to authenticate the document. Both parties should retain copies of the agreement for their records.

How Can an Experienced Family Law Attorney Assist You?

Our helpful legal team at the Law Office of Hibbeler & Associates can provide guidance throughout the postnuptial agreement process. By speaking with you and learning about your situation and needs, we can help draft an agreement tailored to your specific circumstances that complies with Tennessee law. We can also assist with modifying your agreement as your circumstances change so you and your spouse can have peace of mind, whatever life may bring. To learn more, contact our office today at 931-236-2711 to schedule a free 30-minute consultation.

What Are the Advantages of Obtaining an Order of Protection If You’ve Experienced Domestic Abuse?

Anyone who has been subjected to domestic violence knows how frightening and challenging it can be to seek protection from your abuser. Getting an Order of Protection against your abuser can help shield you from further domestic violence incidents while you take steps to safeguard yourself and your children from harm. A Clarksville family law attorney can explain how this civil order can provide a deterrent against any contact from the abuser and the steps you can take to secure this important legal document.

How Can Victims of Domestic Violence Get an Order of Protection in Tennessee?

When applying for an Order of Protection, the person requesting the order is known as the “petitioner,” and the person they are seeking protection from is the “respondent.” The petitioner and respondent can be of any gender. For protective orders based on domestic violence allegations, Tennessee law requires that the petitioner show that they have or had one of the following relationships with the respondent:

• Spouse or ex-spouse
• Current or former dating or sexual relationship
• Same-sex partner
• Blood or adopted relative
• Current or former relation by marriage
• Present or past roommate or anyone who lived in the same household

To file your petition, you must fill out an official Petition for Order of Protection and Order for Hearing form with the court clerk’s office in the county where the abuser lives or where the abuse took place. If there is an immediate risk of abuse, you may request a temporary protective order. You will have a hearing scheduled as soon as the day you file, where you will explain to the court why the Order for Protection is needed. Temporary Orders of Protection may be granted ex parte, which means the court will make its decision without notifying the respondent of the hearing. If the court approves your temporary order, it will go into effect as soon as the respondent is served with the petition. 

Temporary orders usually only last 15 days. A hearing will be scheduled during this period to allow both sides to present their evidence. At the end of this hearing, the court may choose to end the order or issue a Final Order of Protection that lasts up to a year.

What Safety Is Provided By an Order of Protection?

Seeking an order can give domestic violence victims a sense of safety if they are concerned their abuser will make continued attempts to harm or contact them. When a court grants an Order of Protection, the respondent is not charged with a crime, and the order does not go on their criminal record as long as they abide by its requirements.

However, if the respondent violates any of the terms of the order while it is in place, they can be arrested and face legal consequences for their actions. In many cases, the threat of jail time and fines is enough to deter an abuser from continued harassment, stalking, threats, or contact. The following are some of the benefits you should consider when deciding with your legal advisor whether an order of protection may be helpful in your situation.

Legally Enforceable Restrictions on Contact

Under Tennessee law, an Order of Protection can prohibit the perpetrator of domestic violence from taking specific actions against the alleged victim and their children.

Depending on the circumstances of the case, the protective order may also contain other requirements specified by the court. Standard terms of an Order of Protection include:

• Prohibiting all direct or indirect contact with the petitioner.
• Requiring the respondent to stay away from the petitioner, their residence, workplace, and other frequently visited locations.
• Giving the petitioner temporary custody rights to any shared minor children.
• Requiring the respondent to pay spousal or child support.
• Ordering the respondent not to cancel any utilities, such as phone service or electricity, and to transfer billing responsibilities to the petitioner.
• Mandating attendance at counseling sessions for violent behaviors or substance abuse issues.
• Giving the petitioner full temporary possession of the shared residence and ordering the respondent to move out or requiring the respondent to provide adequate alternate housing for the petitioner and their minor children.
• Ordering the respondent to pay for court fees.
• Removing the respondent’s right to have or buy firearms.
• Giving the petitioner custody of a shared pet or a child’s pet.

Penalties for Violating the Order

Violating an Order of Protection in Tennessee is a serious act that can result in immediate arrest by the police. Officers do not require a warrant or proof of any further criminal acts to make an arrest for violating a valid order. They only need probable cause to believe the order has been violated to incarcerate the respondent. If your abuser is at your residence, place of work, or other location prohibited by the order, it is sufficient cause for arrest.

To further protect your safety, the offender will typically be subject to a mandatory 12-hour hold before being released. A violation of an extended Order of Protection is a Class A Misdemeanor and can be punished by up to 11 months and 29 days in jail and/or a fine of $100 to $2,500. Additional charges and extensions of the protection order may apply if the offender was in possession of a firearm, attempted to assault you, or was in contempt of court.

Protections if You Move Out of State

Under the federal Violence Against Women Act (VAWA), all states must honor and uphold a valid protective order from another state. However, if you are considering moving out of the state for your safety, you should contact a lawyer to ensure you complete all necessary legal steps before relocating. The court will likely need your updated address to contact you about any further legal matters, although you may request they keep it confidential.

How Can Our Law Firm Assist You?

If you or a loved one are a survivor of domestic violence, it’s critical to seek legal help and utilize all the protections afforded to you by law. If you are in an emergency situation, don’t hesitate to contact local law enforcement or call 911. Getting an Order of Protection can be a key part of keeping yourself safe in the aftermath of an incident of domestic abuse.

Our experienced family law attorneys at the Law Offices of Hibbeler & Associates can guide you through the petitioning process, gather crucial supporting evidence, represent you at your hearings, and help you find long-term legal solutions so you can move forward with your life. To learn more about or services, contact our Clarksville law office today at 931-236-2711 for a free, confidential case evaluation.

What Do You Need to Know About Joint Custody in Tennessee?

If you are involved in a divorce and share a child with your former spouse, a parenting plan will eventually be required as part of your legal proceedings to settle matters relating to custody. It can often be challenging for exes to agree upon a parenting plan, particularly if they are not on good terms with one another. Whether you are able to work out a mutually beneficial parenting plan with the assistance of your respective legal teams or you reach an impasse, and the court creates a plan for you, there exists a strong possibility that you will be involved in some variety of joint custody situation.

Understanding how joint custody works and how the court makes custody determinations can be crucial in preparing yourself for the divorce process. The assistance of a knowledgeable child custody attorney can make a positive difference in your case and help you work toward a ruling that is beneficial for you and your child.

What is Custody?

Child custody refers to the legal relationship a parent has with their child. Married parents share all custody rights equally as a couple, but if the marriage ends, a plan outlining each parent’s rights and responsibilities must be made and approved by the court. Child custody can be split into two categories:

• Legal custody: The authority to make decisions on the child’s behalf about important decisions regarding their health, education, upbringing, religious learning, extra-curricular activities, and more.
• Physical custody: Refers to where the child lives and who is responsible for their daily care.

Each category of custody rights may be given exclusively to one parent (sole custody) or split between both parents (joint custody). Joint custody is the court’s preferred arrangement because having a strong, healthy relationship with both parents is usually the most beneficial for the child’s well-being. That said, the court makes custody determinations on a case-by-case basis and may decide that sole physical and/or legal custody is in the child’s best interests. Certain unusual circumstances may lead to a sole custody arrangement, such as domestic violence or sexual abuse charges against one parent or long-term non-payment of child support.

Is Joint Custody the Same as 50/50 Custody?

It’s a common misconception that joint custody means that each parent will have physical custody of their child 50% of the time. While it may be possible for some families to make a true 50/50 custody arrangement work, it generally is not practical. It could even cause severe stress and disruption in your child’s life as they move between residences.

In most joint custody scenarios, the parents will have an equal say in meaningful decisions in their child’s life, but one parent will be designated as the “primary residential parent” because the child spends more time living at their home. Tennessee law does not provide a clear definition of what constitutes joint physical custody, but in many states, even a 70/30 split is considered joint custody. The exact nature of your joint custody arrangement will be outlined in the terms of your parenting agreement.

How is Custody Determined in Tennessee?

The court’s goal is to order a custody arrangement that permits both parents to enjoy the maximum participation possible in the child’s life while centering the child’s need for stability, care, and other essentials that could impact their well-being. The court also takes into account the child’s preference if they are over the age of 12, as well as any evidence of prior parental or familial abuse. Because every case is unique, Tennessee law does not include a specific formula for determining a custody arrangement. Instead, the court determines the best interest of the child in a custody dispute by considering all relevant factors, as specified in Tenn. Code Ann. § 36-6-106. These factors include, but are not limited to:

• The child’s relationship with each parent.
• The parents’ willingness to facilitate a positive relationship between the child and the other parent.
• The child’s adjustment to home, school, and community.
• The mental and emotional fitness of each parent.
• The ability of each parent to provide for the child’s needs.
• How the parents divided responsibility for caregiving duties prior to the divorce.
• The work schedule and availability of both parents.
• The relationship between the child and household members, including siblings and other relatives.

Can You Negotiate a Joint Custody Plan With Your Ex?

Some divorces are more acrimonious than others, and, unfortunately, child custody can become a painful and challenging topic that the parties are unable to resolve without the court’s intervention. However, if you and your former spouse can devise a mutually agreeable Permanent Parenting Plan through negotiation or mediation, you may present it to the court for approval. As long as the court finds your plan’s terms reasonable and in your child’s best interests, it will likely approve your agreement. Negotiating your parenting plan as part of your divorce settlement can often be the best way to foster a healthy co-parenting relationship with your spouse and ensure your child’s needs are met.

Taking the custody determination out of the court’s hands gives you more leeway to design a flexible and creative plan that fits your unique family situation. It’s vital to enlist the services of a skilled child custody lawyer who can guide negotiations and work through any points of contention that may arise during the process. Your lawyer will be familiar with the state’s laws and regulations regarding parenting plans and will ensure all your documents are in order before you present them to the court.

How Can Our Law Firm Help You?

Few legal issues are as sensitive and personal as child custody. During the aftermath of a divorce, it can be hard to imagine spending time away from your children or having to communicate with your ex regularly about parenting topics. Custody battles require compassionate yet strong legal representation. An experienced Tennessee child custody lawyer from the Law Office of Hibbeler & Associates can answer your questions, guide you through every step of the legal process, and fight to protect your parental rights. We will take the time to understand your situation and provide personalized legal solutions to help you move forward with your life. To schedule a free 30-minute case evaluation, contact our law firm today at 931-236-2711.

What Rights Do You Possess as an Unmarried Father in Tennessee?

Having both parents in a child’s life is nearly always best for their mental and physical well-being. However, under Tennessee law, unmarried fathers do not automatically receive custody or visitation rights. Instead, these automatic rights are granted solely to the unwed mother. Unmarried fathers must take proactive steps to legally establish their parentage and protect their rights to play a role in their child’s upbringing.

If you are not wed to the mother of your child, it can be beneficial to enlist the assistance of a skilled Tennessee family law attorney who can guide you through the process of asserting and safeguarding your parental rights. At the Law Office of Hibbeler & Associates, we understand the stress and legal concerns that unmarried fathers may experience. We strive to provide clear answers and strong advocacy so you can face the custody process with confidence.

How Do You Establish Parentage as an Unmarried Father?

Regardless of whether you are in a long-term relationship with your child’s mother or on good terms, if you were not a married couple within 300 days of the child’s birth, Tennessee law immediately grants the mother full custody of the newborn child.

You cannot even voluntarily sign the birth certificate at the hospital as the baby’s biological father until you have established parentage. To officially establish paternity for your child and obtain rights as an unmarried father, you must complete one of the following actions.

Fill Out a Voluntary Acknowledgement of Parentage

A Voluntary Acknowledgement of Parentage (VAoP) is a form that allows an unmarried mother to establish the paternity of her child with the biological father. You must both sign the form in front of a notary public, although you do not have to sign it at the same time. By signing the document, you both swear that the information it contains is accurate to the best of your knowledge. 

If you are present at the birth and the mother is agreeable to filing a VAoP, the process can be completed at the hospital with the assistance of staff members. For unmarried fathers who are absent due to military duty or other circumstances, you or the mother can contact your local child support office or health department for help filling out and submitting the VAoP. Keep in mind that this form is a binding legal document, and getting it reversed can be highly challenging. If you have any doubts about whether the child is yours, you should avoid signing the VAoP and arrange for DNA testing to determine paternity.

Petition the Court

If the mother refuses to sign a VAoP or another man has claimed to be the biological father of your child, you can petition the court to establish paternity. You do not require the cooperation or permission of the mother to begin a petition. The petition must be filed in the Tennessee county where you, the child, or the child’s mother reside. The court will order DNA tests to verify the relationship between you and the child.

Can You Petition to Adjudicate Parentage if the Mother of Your Child is Married to Another Man?

If the mother of your child is married to another man at the time of your child’s birth, her husband will automatically be presumed to be the father of the child. It is possible to refute this assumption through court action and establish your paternity rights, but you must act quickly.

Most claims of this nature must be filed within 12 months of the baby’s birth to be considered valid. If you find yourself in this challenging situation, you should reach out to a trusted family law attorney immediately for legal guidance.

What Rights Do You Have as an Unmarried Father With Established Parentage?

By taking steps to have yourself recognized as the biological and legal father of your child, you are setting yourself up to be an active member of their lives. After you have adjudicated parentage, you can take further actions to protect your ongoing relationship with your child, including:

• Filing a parenting plan and a parenting time schedule with the court.
• Safeguarding your rights to be the caregiver for your child if their mother is deemed unfit or becomes unable to care for them.
• Adding your child to your insurance to support their health and well-being.

As a father, you will also have responsibilities to uphold. Not all fathers will be required to pay child support because that determination is made by considering the financial situations of both parents. However, it is possible you may be ordered to pay child support to provide for your child’s needs. Your lawyer can help you navigate the custody and child support process as an unmarried father so you can be involved in caring for and providing for your child’s best interests.

Do Unmarried Fathers Have the Right to Choose or Change Their Child’s Last Name?

Unwed Tennessee mothers have the right to choose the last name of their child. The law states the child’s last name must be part of the mother’s legal name, her maiden name, or the father’s last name. If your child does not share your last name, and this is an important issue for you as the established father, you may petition the court at any time to request a change.

In these cases, the burden is on the father to present proof that a name change would be in the child’s best interests. Information the court may consider when making its ruling includes:

• The reputation attached to the current and proposed last names.
• The child’s preference in name, if they are old enough to state it.
• Any bullying, teasing, or discomfort the current or proposed last name could cause.
• How long the child has had the name and how a change could affect them.

How Can Our Law Firm Assist You?

As an unmarried father in Tennessee, it may feel as if you face many obstacles when attempting to be a part of your child’s life. Our experienced Tennessee paternity lawyers at the Law Office of Hibbeler & Associates can help simplify the process and uphold your rights as a parent. Contact our law firm today at 931-236-2711 to schedule a free 30-minute case evaluation to discuss your case.

Why is it Crucial to Know Your Rights as a Non-Custodial Parent?

Navigating child custody arrangements after a divorce can be challenging for both parents. If your child spends less time with you than the other parent, it may feel like you are being left out of critical conversations or decisions about your child’s upbringing. Knowing and understanding your rights as a non-custodial parent can help you recognize which situations are to be expected and which may violate your parental rights. This information can help you avoid unnecessary conflicts and allow you to identify and stand up against inappropriate actions. If you have questions about your parental rights, it is essential to contact a trusted Tennessee child custody lawyer today to get the most up-to-date information on the law and your options for handling disagreements.

What is a Non-Custodial Parent?

In recent years, Tennessee and many other states have moved away from using the terms “custody” and “custodial” to officially describe a parent’s role in their child’s life. However, many people, including lawyers, may revert to the older terms out of habit and familiarity.

The new terminology you will likely hear in court and your parenting agreement is as follows:

• Primary Residential Parent (PRP): The parent who has the child physically living with them the majority of the time.
• Alternate Residential Parent (ARP): Previously referred to as the “non-custodial parent,” this is the parent who is not the PRP. 
• Parenting time: Instead of referring to the time a parent spends with their child as “visitation,” it is now called parenting time in legal proceedings to ensure a focus on the child’s needs and well-being.

Even in joint parenting situations, a PRP and an ARP will be designated for legal purposes. In all parenting arrangements, while the child is physically with either parent, that parent is responsible for making decisions on day-to-day topics. The right to have the final say on significant, long-term decisions is often designated by the court or your parenting agreement. However, both parents are encouraged to work together on these issues whenever possible.

Note that decision-making rights may be split differently than residential parenting rights. For example, the ARP may be the decision-maker regarding the child’s religious upbringing and health care, while the PRP makes decisions about education and extracurriculars. The court may determine your parenting role after your divorce, or you may be able to mediate a parenting agreement with the help of a lawyer to ensure your desired involvement in your child’s life.

What Rights Are Afforded to a Non-Custodial Parent in Tennessee?

Whether you are the ARP or the PRP, you have rights when it comes to participation in your child’s upbringing. Tenn. Code Ann. § 36-6-101 outlines the fundamental rights for both parents that the state believes are key to fostering a healthy parent-child relationship. These rights may only be curtailed if the court has ruled that denying or limiting a specific right is in your child’s best interests or if your finalized parenting plan handles the topic differently. 

By law, an ARP (non-custodial parent) in Tennessee has the following rights:

• Twice weekly, unimpeded phone conversations with their child that are scheduled at a reasonable time and last for a suitable duration.
• The ability to send mail to their child that will not be opened or censored by the other parent.
• The right to receive prompt health information about their child within 24 hours of a hospitalization, severe illness, or death.
• The right to request and receive copies of their child’s school records, including test scores, class schedules, and other documents typically available to parents.
• The right to request and view the child’s medical and treatment records.
• The right to be free of derogatory remarks about themselves or their family members made by the other parent to or in the presence of their child.
• The right to receive 48 hours’ notice, whenever practical, of extracurricular activities such as athletics, church functions, or other events so they can attend or participate as appropriate.
• The right to receive a detailed itinerary and emergency contact information if the other parent takes their child on an out-of-state trip for two days or more.
• The right to access and participate in the child’s education and activities, including lunch visits and other events, as long as they do not interfere with the child’s day-to-day functioning or school performance.

What Can You Do if You Believe Your Parental Rights Have Been Violated?

The courts recognize that it is crucial for a child’s welfare to have positive interactions with both parents throughout their childhood, and they will take steps to encourage and protect these relationships unless there is a strong reason not to. The other parent cannot legally limit your parenting time or deny you contact with your child as retaliation for unpaid child support or other issues. It is crucial to advocate for your rights if you believe the other parent is inappropriately restricting your ability to play an active role in your child’s life.

A Tennessee child custody lawyer can evaluate your situation and advise you on your next steps. Sometimes, the matter can be resolved through communication or mediation, but the court may need to be involved if a resolution cannot be reached.

How Can an Experienced Child Custody Lawyer Assist You?

Child custody issues are often fraught with emotion. The stakes are high when it comes to establishing your level of involvement in your child’s life after a divorce. It is important to remember that you have certain rights that are guaranteed by state law, even as a non-custodial parent (ARP). A skilled Tennessee child custody lawyer from the Law Office of Hibbeler & Associates can help uphold these rights. Whether you are newly divorced and seeking to create an agreeable parenting plan or you are experiencing difficulties getting the other parent to honor your agreement and rights, our lawyers can provide knowledgeable legal guidance. Contact our firm today at 931-236-2711 to schedule a free 30-minute evaluation to learn more about your legal options.

What Rights Do You Have as a Father in Tennessee?

Becoming a father can be a wonderful experience. You are likely looking forward to all the time you will spend with your child and the special memories you will make. Unfortunately, the path to securing fundamental rights to custody, parenting time, and more can be very complicated for some fathers. A solid understanding of the state’s laws is the first step to protecting parental rights. A knowledgeable family law attorney can explain what you need to know about fathers’ rights in Tennessee and the legal actions you can take to ensure you remain involved in your child’s life.

How Does Your Marriage Status Impact Your Parental Rights?

Under Tennessee law, if you were married to your child’s mother when the child was conceived or born, you are automatically considered their legal father and are granted full parental rights. If, at a later date, you end your relationship with the mother, you will continue to have rights as a father unless there are exceptional circumstances that warrant their limitation or removal. However, the court must keep the best interests of the child in mind at all times. In most circumstances, having a solid relationship with their biological father is best for the child’s mental and physical well-being.

The situation becomes much more complex if you are not married to the mother at the time of your child’s birth. An unmarried mother is immediately granted full custody of her child. For an unwed father to obtain parental rights, he must first establish paternity. Unfortunately, signing the child’s birth certificate at the hospital is not enough to provide the legal proof of parentage that the court requires for fathers.

How Do You Establish Paternity if You Are Not Married to Your Child’s Mother?

According to the Centers for Disease Control (CDC), 42.8% of all children born in Tennessee in 2021 had an unwed mother. It is vital for the fathers of these children to understand the legal process for securing their right to play a positive role in their child’s upbringing. Establishing your paternity ensures you maintain your legal ability to see and spend time with your child. Two ways exist to prove your parentage as a father:

• Complete a Voluntary Acknowledgement of Parentage (VAoP) form: If you and your child’s mother are on good terms and she acknowledges you as the child’s father, you can fill out this form to establish paternity. You both must sign the document in front of a notary public, although you do not need to do it at the same time. It is imperative that you refrain from signing this form if you have any uncertainty about whether you are the father because it is a legally binding document. If you have any questions, do not hesitate to contact a Tennessee paternity lawyer prior to signing.
• File a petition to establish paternity: If you believe you are the father of a child, you may petition the court in the county where you, the mother, or the child live. The mother’s permission is not required to file this petition. If the mother will not complete a VAoP, the court can order a DNA test to be conducted on you and the child to confirm your relationship. 

How is Child Custody Determined?

Once you have established paternity, you have the right to request an ongoing relationship with your child. Custody is split into two types:

• Legal custody: The right to have a say in important decisions involving your child’s health, education, religious affiliation, and other aspects of their upbringing.
• Physical custody: The daily living arrangements of the child, including where they will stay and which parent they will spend time with.

If you and your child’s mother can reach a custody agreement, you may file it with the court to make it official. Otherwise, the court will create a custody arrangement that is in the best interests of the child. You may request to be the primary residential parent, meaning your child will live with you the majority of the time. The other option is to be the alternate residential parent. Under this arrangement, your child will visit you on a court-ordered schedule but will live with the other parent over half the time. Even if you are the alternate residential parent, you still have legal custody rights and must be included in making important decisions about your child’s life.

Sole custody is rare and is typically not ordered unless one parent is found unfit. Possible reasons for a parent to be declared legally unfit include a history of physical or sexual abuse, severe mental or physical illness, serious legal problems, substance abuse, or other significant issues that could endanger the child’s well-being. If you are considering seeking sole custody, you should enlist the assistance of a skilled lawyer as soon as possible to help protect your child’s safety.

How is Child Support Determined?

In addition to having rights as a father, you also have obligations to your child. You may be required to provide health insurance and make child support payments to pay for part of your child’s expenses. However, just because you establish paternity does not necessarily mean you will be ordered to pay child support. The Tennessee Child Support Guidelines include formulas the court will use to determine who will pay child support and how much. These formulas take into account both parents’ incomes, their custody arrangement, and more. If you have questions about your potential support obligations, contact a child support lawyer today for more information.

How Can an Experienced Family Law Attorney Assist You?

Navigating the Tennessee courts to establish and protect your rights as a father can feel daunting and challenging. However, having strong, compassionate legal representation can help. At the Law Office of Hibbeler & Associates, we have years of experience assisting fathers who want lasting relationships with their biological children. Contact our law firm today at 931-236-2711 to learn how we can serve you.

How Does Your Spouse’s Cheating Impact Your Tennessee Divorce?

The breakdown of a marriage is always challenging and emotional. However, the process can become even more complicated and messy if you discover that your spouse was engaged in an extramarital affair. It is natural to be upset not only at your former spouse but also at the homewrecker who played a role in the disintegration of your marriage.

You may wonder if it is possible to seek justice through the court system for the harm they caused you. An experienced Tennessee divorce attorney can explain what you need to know about the state’s homewrecker laws and the ways the hurtful actions of your spouse could play a role in the court’s rulings in your divorce.

What is “Alienation of Affection”?

Alienation of Affection is a tort that can be brought against a person who deprives a married individual of the affection and love of their spouse. Essentially, through an Alienation of Affection lawsuit, you can take the person with whom your spouse had an affair (the “homewrecker”) to civil court to seek damages for the harm they caused you by destroying your relationship or marriage.

Alienation of Affection lawsuits can also be applied to individuals who encouraged or coerced your spouse into leaving you, even if there was no romantic relationship. However, adulterous relationships are the most common cause of these types of lawsuits.

Can You Sue a Homewrecker in Tennessee?

In a few states, such as North Carolina, it is still possible to bring a lawsuit against the individual your spouse cheated with. However, Tennessee abolished its “homewrecker” statutes on July 1st, 1989. While you cannot sue the person responsible for ruining your marriage, your spouse’s infidelity can still play a significant role in your divorce process.

What Influence Does Adultery Have on Your Divorce Proceedings?

Adultery is not only an emotional betrayal of your love and trust but also a breach of the marriage contract. This fact shifts a spouse’s cheating from a relationship issue to a legal consideration in your divorce. Although it is ultimately up to the judge to determine how cheating allegations influence the outcome of the case, strong evidence of infidelity and marital misconduct can potentially impact many areas of your divorce.

Adultery as Grounds For Divorce

While many states have shifted to only having no-fault divorces, Tennessee still allows for fault-based divorces. Of the 13 valid grounds for a fault-based divorce recognized by the state, two (adultery and inappropriate marital conduct) may be applicable if your spouse engaged in an extramarital affair. Conclusively proving adultery can be more challenging because it requires a preponderance of evidence of a sexual relationship.

Inappropriate marital conduct is often easier to demonstrate and is frequently cited as an alternative ground for the divorce. Even an emotional affair is considered inappropriate marital conduct. If either ground is proven to the court, the marriage will be dissolved by decree.

Impact on Division of Assets

Although the law does not allow judges to consider the misconduct of either spouse when dividing assets, there are some instances where an affair can impact the funds awarded to a spouse. For example, if one spouse spent large sums of marital funds on gifts and trips for the other individual in the affair, that amount may be subtracted from their portion of the assets. Receipts and credit card statements can be helpful in proving these allegations.

Alimony Implications

Adulterous affairs can have an effect on Tennessee alimony payments. The court considers many factors when awarding alimony, including the fault of both parties in the breakdown of the marriage. The court may choose to award reduced alimony to a spouse who engaged in marital misconduct or may even bar them from collecting any alimony at all. Conversely, an financially dependent individual who was cheated on may be more likely to receive the maximum amount of alimony from their unfaithful former spouse. However, this is entirely up to the court’s discretion.

Child Custody Considerations

The court bases its child custody and parenting plan arrangements on the best interests of the child. It can be argued that a parent who engaged in marital misconduct was not prioritizing their children’s mental and physical well-being, which may affect the court’s custody rulings. The court will consider the evidence presented for the parent’s misconduct and determine what impact, if any, it had or may continue to have on their child.

How Can a Family Law Attorney Assist You?

If you know or suspect that your soon-to-be-former spouse engaged in an adulterous affair, preserving any proof you may have of their actions is crucial. Texts, photos, letters, and emails can all be used to support your case and prove to the court that the alleged acts took place. You should also reach out to a trusted Tennessee divorce lawyer to discuss your case and determine your next steps. Your lawyer may mount an investigation to uncover the extent of your spouse’s misdeeds. While it may be painful to learn what actually happened, having strong evidence can be vital to the outcome of your divorce case, including the custody of your children and the amount of your alimony payments.

Although Tennessee law does not allow you to sue the individual who had an affair with your spouse, it does provide leeway for judges in divorce cases to factor in the effects of marital misconduct. If you have questions about how your spouse’s actions could play a role in your divorce, contact our professional lawyers for family disputes at the Law Office of Hibbeler & Associates today to schedule a free, confidential case evaluation: 931-236-2711.