Tennessee visitation rights of grandparents

As with any discussion of children's custody and visitation, the key consideration for the court is the best interests of the child. The Tennessee statute that deals specifically with visitation is 36-6-306 and states in pertinent part that:

(a) Any of the following circumstances, when presented in a petition for grandparent visitation to the circuit, chancery, general sessions courts with domestic relations jurisdiction or juvenile court in matters involving children born out of wedlock of the county in which the petitioned child currently resides, necessitates a hearing if such grandparent visitation is opposed by the custodial parent or parents:
(1) The father or mother of an unmarried minor child is deceased;
(2) The child's father or mother are divorced, legally separated, or were never married to each other;
(3) The child's father or mother has been missing for not less than six (6) months;
(4) The court of another state has ordered grandparent visitation;
(5) The child resided in the home of the grandparent for a period of twelve (12) months or more and was subsequently removed from the home by the parent or parents (this grandparent-grandchild relationship establishes a rebuttable presumption that denial of visitation may result in irreparable harm to the child); or
(6) The child and the grandparent maintained a significant existing relationship for a period of twelve (12) months or more immediately preceding severance of the relationship, this relationship was severed by the parent or parents for reasons other than abuse or presence of a danger of substantial harm to the child, and severance of this relationship is likely to occasion substantial emotional harm to the child.

The circumstance that has most frequently come into play in my practice has been the scenario outlined in clauses (5) and (6) where the child resided with the grandparent for a significant period of time. DCS has as a priority the goal of re-uniting the children with the parents, but the grandparent does have rights that are protected by the state.

Tennessee's Castle Doctrine

The question is frequently asked and probably more frequently pondered, "What kind of force can I use to protect my property?" Urban legends abound concerning dragging would be assailants inside the threshold of one's home to prove entry. The rule, though, is fairly simple: Generally speaking, one may not use force that will cause death to defend only property; and one may not use deadly indirect force, such as a trap or spring gun, to defend property. Only reasonable force is permissible.

However, special rules apply to defending one's home, especially when oneself or one's family is present. Like many jurisdictions, Tennessee follows the "castle doctrine", which effectively states that one's place of residence is a place in which one enjoys unique protection from illegal trespassing and violent attack. A person may have the legal right to use deadly force to defend that place, and/or any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.

Tennessee Motorcycle accidents

Many people are surprised to learn that most motorcycle accidents are usually caused by the negligence of another motor vehicle. In fact, there are studies that maintain that over 80% of multi-vehicle accidents involving motorcycles are caused by the negligence of the driver of an automobile. Often, this occurs because motorcycles can stop much faster than cars and are thus more likely be rear-ended by a negligent driver following too closely or not paying attention.

Motorcycle accidents also occur when the driver of an automobile fails to yield the right of way. Regrettably, motorcycle accident victims are 21 times more likely to die than personal injury victims in a passenger car or truck. In an average year, 166,000 Americans will be hospitalized as a result of a motorcycle accident of which 4,700 will die. Per registered vehicle, the fatality rate for motorcyclists in 2004 was 4.1 times the fatality rate for passenger car occupants.

Statistical trends show that the costs in lives and injuries may be getting worse. In 1997, about 5 percent of the total number of traffic fatalities involved motorcycles; in the 2004 motorcycles accidents accounted for about 9 percent of the 42,800 traffic fatalities.

Auto makers and immunity from product liability claims

As General Motors and Chrysler have emerged from bankruptcy, each has publicized how it will deal with past, present and future product liability claims. This article outlines how GM will accept some liability while Chrysler's post bankruptcy incarnation will only accept claims from the new line.

The elements for liability in this area generally deals with conduct such as negligent design or manufacture. It will be interesting to see how legitimate claims against Chrysler will be handled if the claim arises from it's pre-bankruptcy status.

Guess Jeans co-founder ordered to pay $370 million in defamation lawsuit

This Los Angeles Times article explains a little about defamation and a little more about the importance of cooperating in a trial. Apparently, the defendant was not allowed to participate in the trial after he repeatedly failed to respond to pre-trial procedures and so the plaintiffs received a default judgment. He will most likely appeal and it will be interesting to see how much he does this time around.

I have stated to clients, prospective clients and even to an opposing defendant, that no matter how trivial they may see the lawsuit, it is imperative that they respond and file an answer.

Race discrimination

Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex, and religion. The EEOC keeps a page that explains this fully.

Additionally, harassment and a hostile work environment is prohibited. To begin the process, one would need to first contact the EEOC. Only after their investigation and after they have sent a letter stating that a lawsuit may proceed can an attorney step in to file suit.

The key is early communication and proper, thorough documentation of what happened.

Excessive force by police officers

Anyone who watched the media coverage in 1991 of the Rodney King incident and the terrible riots that ensued has at least a fundamental understanding of this legal concept.

A workable definition may be: Excessive force by a law enforcement officers is a violation of a person's rights. Excessive force is not subject to a precise definition, but it is generally beyond the force a reasonable and prudent law enforcement officer would use under the circumstances.
Force should be used in only the minimum amount needed to achieve a legitimate purpose. Police brutality is a direct violation of the laws within the police force. The use of excessive force is also a direct violation of the Fifth and Fourteenth Amendments of the U.S Constitution regarding cruelty and protection of the laws.

The key element to consider before contacting an attorney is whether the use of force was reasonable under the specific circumstances of the case at hand. If an arrestee is resisting in any way, the arresting officers may use reasonable force for their own protection and have a limited privelege here that does not extend to most other citizens.

Order of Protection

An order of protection is a civil order issued by the Tennessee court. The purpose of the order is to prevent one person from harming another. Only people that have specific types of relationships with each other can qualify for an order of protection.

Examples of these relationships are:
•Adults or minors who are current or former spouses;
• Adults or minors who live together or who have lived together;
• Adults or minors who are dating or who have dated or who have or had a sexual relationship;
• Adults or minors related by blood or adoption;
• Adults or minors who are related or were formerly related by marriage; or
• Adult or minor children of a person in a qualifying relationship.

Sexual assault victims and stalking victims may also qualify for orders of protection.

If an order of protection is issued by a Tennessee court, violating that order means the offender faces civil contempt and can serve time in jail, typically ten days per violation.

Whiplash

This term gets thrown around alot and I had the opportunity to do some research about what this is all about. This is actually a blanket term for a collection of pathological conditions of the neck, typically an acute sprain or strain and is the most common of all neck injuries.

Whiplash is characterized by neck pain and limitation of movement for the the neck and back and may frequently be caused by a person who has been in a car that is hit from behind. The duration of the symptoms depends on the severity of the injury, emotional factors, and other factors.

Treatment typically consists of a neck brace to immobilize the damaged muscles and ligaments, physical therapy to return the muscles and ligaments to proper functioning, and in some cases, drug therapy.

Pa. health club shooting gunman a 48-year-old man

Another tragic, senseless shooting at a public place where the deranged killer afterward took his own life. This AP story outlines the breaking news.

The question will certainly come as to what could have been done and even whether or not the club could have prevented this incident. The key to any question like this is foreseeability. Any premises liability question hinges on this and in Tennessee, there is a balancing question as to whether the burden of preventing such an accident is greater than the gravity of harm. Here, I cannot imagine how this could be foreseeable, this was such a random event.

However, if this were a restaurant where a muddy, slippery entrance was allowed, and the burden of preventing a fall would simply be to improve the walkway, the balance shifts to the premises owner. Or a bar in a high crime area could prevent a shooting by hiring a security guard to work nights, or a downtown mall hiring roving security for the parking lots. In these cases, the burden of some kind of preventative measure is far less than the gravity of the potential harm.

The key is foreseeability and in the suburban club shooting, could this have been anticipated or any kind of contingency plan made? It is unlikely.

Truck Accidents

Doing some research for a client, I found some startling statistics on truck accidents. There are more than three accidents a minute where an American is injured or killed in a truck accident. Thousands of people in this country every year are injured or lose their lives in truck accidents involving tractor-trailers, 18 wheelers, big rigs, fire engines, semi trucks, and other large commercial vehicles. Most frequently, these accidents are on highways, I-24, I-40 and I-65. Poor driving, overworked drivers that are being paid by the mile, over sized truck loads and various other unsafe practices increase the dangers in operating these heavy trucks that weigh over 80,000 lbs and the average passenger car weights approximately 3,000 pounds. No match!

While working my way through law school, I worked for a trucking company and I have some idea about how these businesses are run.

A lawyer must consider whether the company that hired the driver may also be responsible under the theory of negligent entrustment or negligent supervision if they failed to properly screen the truck driver before the accident or if they failed to properly train the truck driver. It is amazing how many operators of trucks are improperly trained or have unacceptable driving records. There can also be a claim for negligent maintenance, a related legal theory lawyers pursue in truck accident cases when the company and/or truck driver failed to properly maintain the truck. Some companies in the region have a horrible reputation for hitting our streets with an aging, poorly maintained fleet.

In these truck accidents, 97% of fatal truck accidents are victims in passenger cars or trucks, not at-fault driver of the commercial truck. But the trucking industry is a $600 billion dollar business and these companies have many qualified truck accident lawyers at their disposal to vigorously fight personal injury claims from injured victims. We can stand up to these companies to get fair compensation for our clients who have been injured in a truck accident. We will look at logbooks, receipts and other crucial evidence to find the evidence to bring about a just result.

In Defense of 'Deadbeat' Dads

Our practice finds us on both sides of this controversial issue, defending not only the custodial parent's right to receive help raising the child but also the non-custodial parent's needs and ability to pay. This article outlines some of the tough decisions policy makers have before them and the answers that are all too often lacking in the most crucial element of the case: the best interests of the child.