Corporal Punishment

A Texas appellate court recently considered the acceptability of corporal punishment in the context of a termination of parental rights case. In the course of the opinion, the court surveyed some statistics and academic writing on the acceptability of corporal punishment. The verdict: corporal punishment is down but not out.

For example, in 1962, fifty‑nine percent of parents used spanking as the "main disciplinary method," whereas by 1993, that figure had dropped to nineteen percent, with thirty‑eight percent of parents preferring time‑outs and twenty‑eight percent favoring lecturing. In 1968, ninety‑four percent of U.S. adults agreed with the statement that it is "sometimes necessary to discipline a child with a good hard spanking," yet by 1992, only sixty‑six percent agreed with this statement.

Deana Pollard, Banning Child Corporal Punishment, 77 Tul. L. Rev. 575, 582 (2003).

The opinion is a good resource if you need to collect authority for either side of the corporal punishment debate. Most surprising to me was a 1992 survey of Ohio doctors showing that 70% of family doctors and 59% of pediatricians still support spanking.

Thanks to a post on the Family Law Prof Blog for alerting me to this opinion.

The 40% Solution: Substantial Equality and the Relocation Statute

As you know from a recent post, the Tennessee Supreme Court recently addressed the relocation statute in Kawatra v. Kawatra. Although the court set out guidelines for calculating whether parents are spending "substantially equal" time with their children, the court ignored the elephant in the room: How equal is "substantially equal"?

The court did provide some interesting clues. The trial court had determined that Ms. Kawatra spent 58.59% of the time with her child compared with Mr. Kawatra's 41.41%. The trial court found this division "substantially equal." Now, the Supreme Court could have simply held that 58.59% is not substantially equal to 41.41%. Instead, the court recalculated the time each parent spent with the child.

Under the Supreme Court's calculation, Ms. Kawatra spent 62.2% of the time with her child, compared with Mr. Kawatra's 37.8%. The court held that 62.2% to 37.8% was not substantially equal. But the Supreme Court's recalculation increased Ms. Kawatra's percentage less than 4%. Was this 4% dispositive? If not, why would the court have bothered to redo the calculation?

The clear implication is that 40% is the magic number: a parent who is spending at least 40% of the time with a child is spending "substantially equal" time. Does this conclusion comport with your understanding of the plain meaning of "substantially equal"? Is $4,000 substantially equal to $6,000? Is 150% substantially equal to 100%? Is "two for you, three for me" substantially equal? In Kawatra, the Supreme Court's answer appears to have been "yes."

Bill While You Shower

Lawyers find ways to bill while they travel, bill while they make small-talk, even bill while they eat. But to bill while you're showering? That takes some imagination.

According to a post in the South Carolina Family Law Blog, at least one lawyer has found a way. He bills his clients a 5% surcharge for TAYC, which means "Thinking About Your Case." If this lawyer -- like the author of the SCFLB -- does his best thinking in the shower, then he has indeed found a way to bill while he showers.

Of course, billing is one thing; getting paid is something else. Does this lawyer really tell his clients he is adding a 5% fee for thinking about their cases? If so, do they actually pay?

I understand the point that lawyers spend a lot of unbillable time thinking about their clients' cases. But they also spend billable time doing things that don't end up benefiting their clients. The problem is the billable hour paradigm, not the difficulty of "capturing" every moment of time that benefits a client. My advice is: if you are concerned about time spent TAYC, don't add a 5% surcharge. Just raise your rates 5%. It'll raise fewer questions from your clients, and you won't feel guilty if your mind wanders a bit when you're scrubbing your back.

Emergency Rule on Income Share Child Support Guidelines

The Tennessee Department of Health and Human Services has found that the Income Shares Child Support Guidelines pose "an immediate danger to the public welfare." Actually, the problem is the imminent expiration of certain limitations on a petitioner's ability to modify a child support order under the guidelines.

Under current rules, a petition to modify a child support order under the Income Shares Guidelines is limited. A petitioner must meet one of four criteria. These limits were set to expire on December 31, 2005.

The Department concluded that removing the limitations could (1) pose a hardship for parents whose support payments or obligations changed significantly, and (2) cause a drastic increase in the number of modification petitions. So the Department has passed an emergency rule that keeps the current limitations in place.

I can understand the concern about a flood of petitions, but if the new Income Shares Guidelines are fair, then a change in child support obligations caused by implementation of the guidelines should not cause undue hardship to parents.

For a copy of the emergency rule, Click Here.
To review Rule 1240-2-4.05, Click Here.

No Relation: Georgia Family Law Blog

How could I miss this one? It seems that Georgia has a first-rate family law blog run by Andrea Knight. No relation.

The Georgia Family Law Blog is loaded with thoughtful, substantive posts on topics of interest to Georgia family law practitioners and those from other states.

Measuring Time - Tennessee's Relocation Statute

When a divorced parent seeks to relocate outside of Tennessee or more than 100 miles from the other parent, a trial court is required to determine whether the parents are "actually spending substantially equal intervals of time with the child." Tenn. Code Ann. § 36-6-108(a). If so, there is no presumption in favor of or against the relocation request. Determining how much time a parent spends with a child may seem straightforward -- but with lawyers doing the math, results can vary widely.

The Tennessee Supreme Court provided some guidance yesterday when it issued its opinion in Kawatra v. Kawatra. The trial court had attempted to calculate how many hours each parent had spent with the child over the previous year. In doing so, the court had deducted from the mother's time 1,187 hours during which the child was in school. The Supreme Court disagreed with this approach.

The court laid down the following rules for calculating time spent with a child under the relocation statute:

• Time should be calculated in units of days, not hours.
• Days spent with a parent should be calculated based primarily upon the residential schedule, with adjustments made for time not reflected in the schedule or for violations of the terms of the schedule.
• A day claimed by both parents should be allocated based upon an examination of (1) hours actually spent with the child, (2) activities undertaken by each parent with the child, (3) resources expended by each parent on behalf of the child, and (4) the ever-popular "any other factor that the trial court deems relevant."
• When circumstances permit, time spent with a child should be calculated based upon the preceding 12 months.

Now if only we knew how to interpret the phrase "substantially equal intervals of time." More on that in a future post.

New Rule Provides Good Example

The Tennessee Court of Appeals recently amended Rule 7 to require all briefs challenging the classification, division, or allocation of marital property or debt to include a table showing all property and debt considered by the trial court. The rule contains a sample table.

This rule highlights the importance of presenting information to a court in an easily digestible format. Tables, charts, and timelines are great ways to communicate complicated information in a concise and comprehensible way. When writing any brief, remember that you are not limited to text. Graphics, including pictures, can help you communicate effectively with the court.

In appellate briefs, I often begin the recitation of the facts with a graphical timeline setting out the important events. A timeline not only makes the statement of facts easier to understand, it also encourages the court to use your brief as the primary reference when working on the case--rather than scanning through your opponent's statement of facts to determine what happened when, the court will be inclined to simply flip to your timeline.

Tennessee Custody Case Gets (Inter)national Attention

The Tennessee Court of Appeals recently terminated the parental rights of a Chinese couple that had put their daughter in the custody of an American couple shortly after the child's birth. The case has drawn the interest of the Chinese embassy, Chinese cultural groups, and the national media.

For more information:
In re: Adoption of AMH, Jerry Baker & wife, Louise Baker v. Shao-Quiang (Jack) He & wife, Qin (Casey) Luo [Opinion; Dissent]
Family Law Prof Blog
The Tennessean