Custody
Change of Custody in TennesseeThe following is adapted from a brief filed in the Tennessee Court of Appeals. The Courts have somewhat relaxed the requirements for a change in custody, but if you don't get custody in the divorce trial it is not easy to get a custody change. However, if you think you can make a 14-year-old child live where he or she doesn't want to, you're nuts. NOTE: ON JULY 15, 2002 THE TENNESSEE LEGISLATURE HAS CHANGED THE LAW IN THIS AREA BY REMOVING THE REQUIREMENT OF THE COURT FINDING THAT THERE HAS BEEN AN EXPOSURE TO A "SUBSTANTIAL RISK OF HARM." CLICK HERE FOR THE NEW LAW. When it becomes more clear, i.e., how the appellate courts interpret this new law, this treatise will be amended appropriately. THE TENNESSEE SUPREME COURT ON 10-28-2002 ISSUED A RULING SUBSEQUENT TO THE NEW LAW THAT MAKES SIGNIFICANT CHANGES IN THE LAW. CLICK HERE for the Kendrick v. Kendrick Shoemake case. ARGUMENT Scope of Review Cases tried by the Trial Court without a jury are reviewed de novo upon the record with a presumption of correctness of the findings of fact by the Trial Court and unless the evidence preponderates against the findings of the Trial Court, the Appellate Court must affirm the Trial Court, absent error of law. T.R.A.P. 13(d). Nichols v. Nichols, 792 S.W.2d 713, 716 (Tenn. 1990). This presumption applies in child support cases. Cranford v. Cranford, 772 S.W.2d 48 (Tenn App. 1989). The trial judge, as the trier of fact, has the opportunity to observe the parties, their manner and demeanor on the witness stand, and the weight, faith, and credit accorded to their testimony by the trial judge and is entitled to great weight in the Appellate Court. Mays v. Brighton Bank, 832 S.W.2d 347, 351-52 (Tenn. App. 1992); Sisk v. Valley Forge Ins. Co., 640 S.W.2d 844, 849 (Tenn. App. 1982). However, in cases where the Trial Court fails to make findings of fact, the Appellate Court's review is de novo, without a presumption of correctness. R. App. P., 13(d). Archer v. Archer, 907 S.W.2d 412 (Tenn. App. 1995). Further, where there is no conflict of evidence or material fact, the question on appeal is one of law, and the scope of review is de novo, with no presumption of correctness as to the Trial Court's conclusions of law. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn 1983). 1. Initial determination of custody requires the Court to use a comparative fitness standard to determine which parent will best provide for the welfare and best interests of the children. The leading modern day case in the determination of child custody (and Lew Conner's claim to fame) is Bah v. Bah, which requires a determination by the Trial Court as to what is in the "best interests of the child." Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983). Judge Conner established the "best interests of the child" as the goal of all child custody determinations when he stated, "[i]t is the polestar, the alpha and omega." Id. In child custody cases, the welfare and best interests of the children are the paramount concerns and the determination of the children's best interests must turn on the particular facts of each case. Holloway v. Bradley, 190 Tenn. 565, 230 S.W.2d 1003 (1950). In Holloway, the Court said: The determining facts in these adoption and custody cases are so infinite in their variety that the reported decision in one case is of little aid or assistance in settling the next. The supreme rule to which all others should yield is the welfare and best interests of the child. Id. 230 S.W.2d at 1006. See also Rogero v. Pitt, 759 S.W.2d 109, 112 (Tenn. 1988), Arnold v. Arnold, 774 S.W.2d 613, 618 (Tenn. App. 1989); Contreras v. Ward, 831 S.W.2d 288, 289 (Tenn. App. 1991) In Bah v. Bah, 668 S.W.2d 663 (Tenn. App. 1983), the Court established guidelines for making the determination of best interests:
In other words, "best interests" is a destination not a journey, a goal not a process, and the Bah Court merely suggests how that journey or process should begin and gives it a name, "comparative fitness". In all cases involving children, their "best interests" must be paramount, how this occurs is based upon the specifics of each case. The legislature has since established statutory guidelines for custody determinations in Tenn. Code Ann. § 36-6-106 which states in relevant part: In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interests of the child. The court shall consider all relevant factors including the following where applicable:
2. Subsequent determination of custody requires the Court to find an unanticipated, material change in circumstances such that the "exigencies" of the case may require, to provide for the welfare and best interests of the children. In child custody cases, the law is well established that when a decree awarding custody of children has been entered, that decree is res judicata and is conclusive in a subsequent application to change custody unless some new fact has occurred which has altered the circumstances in a material way so that the welfare of the child requires a change of custody. Long v. Long, 488 S.W.2d 729 (Tenn. App.1972), Hicks v. Hicks, 26 Tenn. App. 641, 176 S.W.2d 371, 374-75 (Tenn. App. 1943); Woodard v. Woodard, 783 S.W.2d 188, 189 (Tenn. App. 1989); Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. App. 1995). In other words, once the trial court has made an initial determination with respect to custody, it cannot entertain a subsequent petition to modify custody absent a material change in circumstances such that the welfare of the child demands a redetermination. See, e.g., Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App.1995). The party seeking a change in custody has the initial burden to show a material change of circumstances which affects the welfare of the child. Harris v. Harris, 832 S.W.2d 352, 352 (Tenn.1992). The burden remains on the party seeking the new custody arrangements to show that he or she is comparatively more fit than the party with custody under the challenged custody decree and to show that it would be in the child's best interests for the moving party to be the custodial parent. Gorski v. Ragains, No. 01A01-9710-GS-00597, 1999 WL 51141 at *4, (Tenn. App. 1999) citing Nichols v. Nichols, 792 S.W.2d 713, 715 (Tenn.1990); Rust v. Rust, 864 S.W.2d 52, 56 (Tenn. App.1993). A "material change in circumstances" justifying modification of a child custody order may include factors arising after the initial determination or changed conditions that could not be anticipated at the time of the original order. See Blair v. Badenhope, 940 S.W.2d 575, 576 (Tenn. App.1996) citing Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. App.1993). If the trial court finds that there has been a material change in circumstances, it will then consider the petition to modify custody using a best interests standard. Woolsey v. McPherson, No. 02A01-9706-JV-00125, 1998 WL 760950, at *2 (Tenn. App. Nov. 2, 1998), Hoalcraft v. Smithson, No. M1999-01837-COA-R3-CV (Tenn. App.1999). The party seeking a change in custody has the burden of proving by the preponderance of the evidence that a change in custody is in the child's best interests. Musselman v. Acuff, 826 S.W.2d 920, 922 (Tenn. App. 1991). In Wall, the Court stated:
It is important to note that the "substantial risk of harm" standard in Wall and Musselman has apparently been modified by the Court. The Court has since held that there is a strong presumption in favor of existing custody arrangements. Smithson v. Eatherly, No. 01A01-9806-CV-00314, 1999 WL 548586 at *2 (Tenn. App.1999) citing Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn.1993). The party seeking to change the existing custody arrangement has the burden of proof to show both that the child's circumstances have materially changed in a way that was not reasonably foreseeable at the time of the original custody decision and that changing the existing custody arrangement will serve the child's best interests. Geiger v. Boyle, No. 01A01-9809-CH-00467, 1999 WL 499733 at *3 (Tenn. App.1999); citing Smith v. Haase, 521 S.W.2d 49, 50 (Tenn.1975.); McDaniel v. McDaniel, 743 S.W.2d 167, 169 (Tenn. App.1987); Seessel v. Seessel, 748 S.W.2d 422, 429 (Tenn.1988); Hall v. Hall, No. 01A01-9310-PB-00465, 1995 WL 316255, at *2 (Tenn. App. 1995). Under this standard, the primary inquiry is whether there has been a material change in the child's circumstances. Although there is no concrete definition for what constitutes a material change of circumstances, the court has enumerated several factors that should be taken into consideration when determining whether such a change has occurred. In general, the change must occur after the entry of the order sought to be modified and the change cannot be one that was known or reasonably anticipated when the order was entered. Turner v. Turner, 776 S.W.2d 88, 90 (Tenn. App.1988); Dalton v. Dalton, 858 S.W.2d 324, 326 (Tenn. App.1993). In addition, the material change of circumstances must be a change in the child's circumstances, not the circumstances of either or both of the parents. McCain v. Grim, No. 01A01-9711-CH-00634, 1999 WL 820216 at *2 (Tenn. App. 1999). Finally, the change must affect the child's well-being in a material way. Dailey v. Dailey, 635 S.W.2d 391, 393 (Tenn. App.1981). Tennessee courts have based modification of child custody decrees on the following criteria: the character of the custodian; the conduct of the custodian; and the child's welfare. Townshend v. Bingham, No. 02A01-9801-CV-00019, 1999 WL 188290, at *4 -*5 (Tenn. App.1999). The child's preference is only one factor to be considered in deciding which parent acquires custody of the child. See Tenn. Code Ann. § 36-6-106(1); Wilson v. Wilson, 987 S.W.2d 555, 564 (Tenn. App.1998); Helson v. Cyrus, 989 S.W.2d 704, 707 (Tenn. App.1998). In Contreras, the Court emphasized the importance of stability in a child's life: The stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of custodial change. In short, when all goes well with children, stability, not change, is in their best interests. Contreras v. Ward, 831 S.W.2d at 260 (Tenn. App. 1991). A parent's remarriage or sexual indiscretion are not, per se, grounds for a change in custody. See, e.g. Mimms v. Mimms, 780 S.W.2d 739, 745 (Tenn. App. 1989); Arnold v. Arnold, 774 S.W.2d at 618 Tenn. App. 1989; Curry v. Curry, 416 S.W.2d 372, 377 (Tenn. App. 1967). The Court in Aaby v. Strange, 924 S.W.2d 623 (Tenn. 1996) quoting Taylor v. Taylor, 849 S.W.2d 319 (Tenn. 1993) makes clear that continuity of placement is an important factor in change of custody determinations,
Again, it is important to note that the requirement of a finding a "parent unfit or has exposed the child to some form of risk" in Aaby and Taylor has apparently been modified by the Court. More recent opinions indicate a standard of exigent circumstances may be used by the Trial Courts as set forth by the Tennessee Supreme Court defining "exigencies" under Tenn. Code Ann. § 36-6-106 as follows: "facts and conditions which have emerged since the decree, new facts and changed conditions which were not determined and could not be anticipated by the decree; and that the decree is final and conclusive upon all the facts and conditions which existed and upon which the decree was made." See Smith v. Haase, 521 S.W.2d 49, 50 (Tenn.1975). This standard does not, of course, give the Trial Court unfettered discretion to arbitrarily change custody, but only allows such a change when the exigencies are serious enough to warrant a change in custody. There must be a material change in circumstances sufficiently compelling to warrant a change in custody. See Hoalcraft v. Smithson, No. M1999-01837-COA-R3-CV (Tenn. App.1999). 3. In order to remove custody of a child from the natural parents and vest custody in a third party, the third party must show the unfitness of both parents to have custody by a clear preponderance of convincing proof. In light of the fundamental right to the privacy embodied in the Tennessee Constitution, when no substantial harm threatens a child's welfare, the state lacks sufficiently compelling justification for infringement on the fundamental right of parents to raise their children as they see fit. Tenn. Const. art. 1, § 8, Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993) and Simmons v. Simmons, 900 S.W.2d 682 (Tenn 1995). Parental rights constitute a fundamental liberty interest under the Tennessee constitutional provision that no man shall be deprived of his life, liberty or property, but by judgment of his peers or law of the land. Tenn. Const. art. 1, § 8, Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). Further, this provision protects the privacy interests of parents in their child rearing decisions so long as their decisions do not substantially endanger the welfare of their children. Absent some harm to the child, the Court lacks a sufficiently compelling justification for interfering with this fundamental right. Tenn. Const. art. 1, § 8, Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). Thus, without a substantial danger of harm to a child, a Court may not constitutionally impose its own subjective notions of best interests of the child. Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993). The rule espoused in Hawk is not limited to "an intact, nuclear family with fit parents" Nale v. Robertson, 871 S.W.2d 674 (Tenn. 1994). See also, M.L.B. v. S.L.J., ____ U.S. ____, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996) (adoptive father and mother have a fundamental right to privacy in raising their child) Broadwell v. Holmes, 871 S.W.2d 471 (Tenn.1994) (parental right to govern the rearing of a child) Neither the legislature nor a Court may properly intervene in parenting decisions absent significant harm to child from those decisions. Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993) and Simmons v. Simmons, 900 S.W.2d 682 (Tenn 1995). It is error to commit custody to grandparents where the mother was a fit custodian, despite her previous lifestyle. Dole v. Dole, 848 S.W.2d 656, (Tenn. App. 1992). It is improper to entrust custody to a non-parent until it is shown that neither parent is a suitable custodian. Bush v. Bush, 684 S.W.2d 89 (Tenn. App. 1984) and Simmons v. Simmons, 900 S.W.2d 682 (Tenn 1995). The unfitness of a parent to have custody of a child must be shown by a clear preponderance of convincing proof. Henderson v. Mabry, 838 S.W.2d 537 (Tenn. App. 1992). A child whose natural parent is not an unfit custodian should not be entrusted to the custody of a non-parent except in unusual, exigent, and compelling circumstances. Henderson v. Mabry, 838 S.W.2d 537 (Tenn. App. 1992). The Court held in Sudberry v. Sudberry, No. 01A01-9411-CV-00510, 1995 WL 138892, (Tenn. App 1995) that,
If the evidence shows, and the Trial Court finds that, since the former award of custody, the custodial parent has become an unfit custodian and the non-custodial parent is also unfit, then, and only then, is the Trial Court authorized to commit custody to a non-parent. Sudberry v. Sudberry, No. 01A01-9411-CV-00510, 1995 WL 138892, (Tenn. App 1995). Thus, when no substantial harm threatens a child's welfare, the state lacks sufficiently compelling justification for infringement on the fundamental right of parents to raise their children as they see fit. Further, even when a Trial Court removes the child from the parents, it is the goal of the Trial Court to place the children with a parent when a parent has corrected whatever problem is preventing such placement. 1. Tenn.Code. Ann. § 36 6 106 (1996): Child custody.--In a suit for annulment, divorce, separate maintenance, or in any other proceeding requiring the court to make a custody determination regarding a minor child, such determination shall be made upon the basis of the best interest of the child. The court shall consider all relevant factors including the following where applicable: (1) The love, affection and emotional ties existing between the parents and child; |
