Can you give custody with a Power of Attorney? NO.

The law in Tennessee provides that a parent may delegate "care-giving authority" to any person residing in Tennessee, when either of these hardships are about to occur:

A.   Serious illness or incarceration

B.   a physical or mental condition which makes you unable to care for the minor

C.   the minor's home is lost or not able to be lived in because of a natural disaster.

This power of attorney has to be signed by the parent before a notary and two witnesses.

Now, please note what this power of attorney does NOT do.  It does not grant custody to the party who receives the power of attorney.  In fact, the power of attorney can be terminated by a court upon granting a different legal guardian or custodian of the children.  If either of those things are about to occur, make sure that you know what your intentions are. If it is to give a person control over the affairs of the children, then a power of attorney may work; but, if your intention is to give custody to another person, it won't.  You'll more than likely need a legal guardianship for that. 

Change in Child Support means less Retroactive Support!

The child support laws have changed, and now there is a limit on retroactive support! Beginning on July 1, 2017, a party is limited to five (5) years of support. 

The law now reads that "In any action for retroactive child support filed on or after July 1, 2017, retroactive child support shall not be awarded for a period of more than five (5) years from the date the action for support is filed unless the court determines, for good cause shown, that a different award of retroactive child support is in the interest of justice." - TN Code Ann. 36-1-105

If you file, or have filed against you, a child support case after July of this year, the retroactive support (arrears) can't go back past five years unless there is good cause shown to the court for a different about to be ordered. 

This changes a long standing rule in Tennessee that retroactive support could date back to the birth of the child, and is less of a burden on the paying parent.  

One way to Avoid the Dismissal of your Appeal on Termination of Parental Rights

The termination of parental rights is devastating, but there is an opportunity to reverse it on appeal.  The law in Tennessee (Tennessee Code Annotated 36-1-124(d))  is that the Notice of Appeal must contain the signature of the appellant, and not his or her attorney. Simple, right? All you have to do is make sure that the client's name is on the timely filed Notice of Appeal in order to not mess this up. According to recent opinions, there is no recourse for the client's name not appearing on the Notice, and the Rules of Appellate Procedure don't provide any relief in this circumstance. See In Re: Catherine J, and In Re David P.

It's an easy thing to do to make sure that you're well on your way to an appeal that can be considered by the appellate court!  

Who gets to claim the children?

One of the questions that is most asked in a child support or custody scenario is “Who gets to claim the children on income taxes?” A Mom and Dad can agree on who claims the deduction, or the Court can decide the issue.  However, the bottom line is that federal tax law determines who may actually claim the child or children even if a court order directs who gets the exemption.

The IRS has addressed when the noncustodial parent can claim the children in Publication 504, which discusses children of divorced or separated parents, or parents who live apart.

For tax purposes, the child is already the “qualifying child” of the parent that has custody. That means that the custodial parent can always claim the child. We’ll assume for this article that the Mom is the custodial parent, and the Dad is visiting. The Mom always has the right to claim the child, because she is the custodial parent. So, under what circumstances can the Dad claim the child? Well, let’s see!

The I.R.S. will grant Dad the right to claim the children if four conditions are met:

  1. The parents don’t live together, either because (a) they are divorced or separated under a divorce or separate maintenance decree, (b) they are separated under a written separation agreement, or (c) they lived apart at all times during the last 6 months of the year.
  2. The child or children received over half of his support for the year from Mom and Dad.
  3. The child or children are in the custody of one or both parents for more than half the year.
  4. Mom signs a document, most likely an IRS Form 8332, saying that she won’t claim the child that year and the Dad attaches this document to his taxes.*

As you can expect, number 4 above is the most important requirement. Even though the Court may award the deduction, the I.R.S may not honor the court order if the above requirements are not met.  Hence, it is always important for the noncustodial parent or his attorney to include in the settlement and court order some language requiring Mom to sign Form 8332 to release the exemption.

*There are special rules for a divorce decree signed prior to 1984 that are not discussed here.