The question is: Can a parent lose his or her parental rights by failing to pay child support? The answer is yes and no. Not paying, by itself is not enough to justify losing parental rights. The test is laid out in Tennessee Code Annotated 36-1-113 (g) (1) which provides that initiation of termination of parental rights may be based upon “abandonment by the parent or guardian, as defined in section 36-1-102.” Tennessee Code Annotated section 36-1-102 (1) (A) (i) defines “abandonment,” in relevant part as follows:
For a period of four (4) consecutive months immediately preceding the filing of a proceeding or pleading to terminate the parental rights of the parent(s) or guardian(s) of the child who is the subject of the petition for termination of parental rights or adoption, that the parent(s) or guardian(s) either have willfully failed to visit or have willfully failed to support or have willfully failed to make reasonable payments toward the support of the child; . . . .
For purposes of this subdivision, “willfully failed to support” or “willfully failed to make reasonable payments toward such child’s support” means the “willful failure, for a period of four (4) consecutive months, to provide monetary support or the willful failure to provide more than token payments toward the support of the child.” Tenn. Code Ann. §36-1-102(1)(D).
The next question would be, does “willful” mean? Tennessee case law has helped define this somewhat. “Willfulness” does not require the same standard of culpability required by the penal code. Nor does it require malevolence or ill will. Willful conduct consists of acts or failures to act that are intentional or voluntary rather than accidental or inadvertent. Conduct is “willful” if it is the product of free will rather than coercion. Thus, a person acts “willfully” if he or she is a free agent, knows what he or she is doing, and intends to do what he or she is doing. In Tennessee, it is well settled that parents have an obligation to support their children until they reach the age of majority.
In a recent Tennessee case, the issue was whether the Father was “willful” in his nonpayment of child support. Although it was not disputed that the Father did not visit nor did he pay the child support during the “abandonment” period, the Father argues that he was actively pursuing legal proceedings to regain custody of the child during that time. However, the court held that effort to establish custody or visitation does not negate the fact that a parent has failed to pay support for his or her child. In other words, the Father knew of his obligation to pay the child support and chose not to do so. Court found that the evidence met the burden of proof for the willful failure to pay which is a “clear and convincing” standard.
One last thing to remember, even if this “willful” failure to pay is proven by the clear and convincing standard, there is another hurdle to jump through. There is a best interest analysis that the termination of the parent’s parental rights is in the best interest of the child. The “best interest” analysis is also a clear and convincing standard.
For more information on this subject or other questions in regard to custody termination, please call 615.473.1006 or email to:will@cartwrightlawllc.com. Office is in Murfreesboro, Tennessee. Consultations are of no cost.