The Court of Appeals of Tennessee addressed the scope of T.C.A. § 20-1-105(b) recently, on an issue of first impression. The statute, dealing with the intersection between tort law and family law, reads as follows:
In case the father and mother of the minor child are living apart and one (1) parent has exclusive legal custody of the child, the parent with legal custody has the sole right to maintain an action for the expenses and the actual loss of service resulting from an injury to the minor child, except that the noncustodial parent in such case shall have a right to maintain or join an action brought under this section, for the expenses resulting from an injury to the minor child to the extent the noncustodial parent has paid those expenses.
In Neale v. United Way, a personal injury case in which a child injured his finger in a Boys and Girls Club program, the Court had to reconcile this statute’s use of the term “legal custody”, with the abolition of “legal custody” in Tennessee’s parenting plan statutory scheme, at T.C.A. §§ 36-6-401, et. seq. The Court held that the parent designated as the “primary residential parent” in the parenting plan has “exclusive legal custody” for the purposes of T.C.A. § 20-1-105(b).
Having made that determination, the Court found the child’s mother had exclusive legal custody, and the father was barred from bringing suit for medical expenses and actual loss of service, unless he actually paid medical expenses. But the Court also determined the statute does not bar suits brought on behalf of the child. In this particular case, the child’s father filed suit both on his own behalf and as “next friend” of the child. As the Court noted, in addition to damages suffered by a parent, “upon injury to a child…another and distinct cause of action arises in favor of the child for the elements of damage to him, such as pain and suffering, disfigurement, etc.” The Court held neither T.C.A. § 20-1-105 nor any other statute barred the child’s father from filing suit on this basis.
Because the mother elected not to file suit in Neale, it is still unclear how competing suits from divorced or separated parents would be handled. This decision raises other difficult legal questions as well. For instance, lacking legal custody, if a noncustodial parent brings suit on behalf of a child and the case is settled, can he properly execute a full release of all claims? For now, it appears the best practice would be to require the signatures of both parents, which may be very difficult to achieve. You can find the Court’s opinion here.
 No. #2014-01334-COA-R3-CV (July 28, 2015).