Monday, May 27, 2013

Tennessee BIOTCh factors

UCLA law professor Eugene Volokh writes:
I just ran across the Tennessee statute, Tenn Code Ann. § 36-6-404, that provides the factors that courts are to consider in determining physical custody as between two parents. Many states have such lists of factors, but the bold text seems to me to be unique to Tennessee:
(b) ... The court shall make residential provisions for each child, consistent with the child’s developmental level and the family’s social and economic circumstances, which encourage each parent to maintain a loving, stable, and nurturing relationship with the child. The child’s residential schedule shall be consistent with this part. If the limitations of § 36-6-406 [which basically deal with abusive, neglectful, criminal, or otherwise unfit parents] are not dispositive of the child’s residential schedule, the court shall consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

[Other factors, which are much more common in such statutes than factor 1 is, omitted. -EV]

(16) Any other factors deemed relevant by the court.
Now I know that Tennessee is the Volunteer State, but preferring parents who can inspire and encourage the child “to prepare for a life of service” strikes me as an improper judgment on the government’s part, and an interference with the parental rights of those parents who don’t favor “a life of service,” or whose vision of “a life of service” is different from the court’s.
I post this to emphasize the peculiar factors that can come into determining the Best Interest Of The Child, even if the judge tries to follow the law. Some people think that it is obvious what is good for kids.

No, the judge cannot assess "the parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service". Nor is it desirable, even if they could. Perhaps a religious upbringing would help satisfy the requirement, but the judge has no business favoring a religion.

Volokh also mentions this Iowa attack on free speech:
District Judge James Richardson forbade a Daily Times Herald reporter from taking notes at a vehicular homicide trial Tuesday in Audubon, a rare courtroom rule that some say is unconstitutional.

Richardson said a reporter’s scrawls could “influence the jury in that they might think something is important if they see me writing,” reporter Jared Raney said....
He says that such a ban is contrary to the First Amendment.


Anonymous said...

To inspire, instruct and encourage children to a life of service really sounds good, but whose opinion judges this? What is their training? I would hate for any of the judges in Santa Cruz County to judge parents on these qualities. They do such a bad job as it is. The judges do great harm to families. The County always plays musical chairs with them. now you see them in criminal court, now they're in Family Court. The judges all lack humanity. Worthless and corrupt!

Anonymous said...

On this Memorial Day, that text in bold reminded me of some words from my dad's memorial service:

After dinner one Sunday when I was seven and in first grade, he told me, "I'm going to give you an allowance." I didn't know what an allowance was, but it sounded like I was getting something, which seemed good. He said, "I'm going to give you twenty-five cents a week and this will be your money and you can do whatever you want with it.

"But I want you to save a nickel and give a nickel away. The nickel you save, you can leave on top of the dresser, and when you want to buy something that costs more than your allowance, you can use the money you saved. And the nickel you give away, you can put in the offering plate at Sunday school. Because no matter how much or how little you ever make, you can always save some and give some away."

That was the most powerful lesson I ever got from anyone. And I realized that my father didn't have any preconceived notion of what line of work I should go into, but I could tell that he had faith in me, that I would one day be productive.