Posted by: koherston | December 3, 2012

Grandparent Prevails Over Parent in Tennessee Child Custody Dispute: Mook v. Mook

Facts: After a short marriage notable for domestic violence, the parties divorced. Mother was named the primary residential parent of Child, and Father was awarded visitation. A few years later, Mother disappeared under suspicious circumstances. Father took custody of Child immediately following Mother’s disappearance. One week later, Maternal Grandmother petitioned for custody of Child. Father countered that he, or alternatively, Paternal Grandparents, should be awarded custody. Numerous witnesses testified to Father’s history of illegal drug use, drug trafficking, violent behavior, and verbal and physical abuse towards Mother. When questioned, Father repeatedly asserted his Fifth Amendment privilege against self-incrimination. The trial court found Father was unfit to parent Child and that he posed a substantial risk of harm to Child based upon Father’s “dangerous temper and because of danger from exposure to drug dealing, drug use, irresponsible driving, and exposure to undesirable associates.” Maternal Grandmother was named the primary residential parent of Child. Father and Paternal Grandparents appealed.

On Appeal: The Court affirmed the trial court.

The first legal principle to be considered in a custody dispute between a non-parent and a parent of a minor child is the parent’s constitutional right to the care and custody of his or her children. This fundamental right is derived from the right to privacy in article I, section 8 of the Tennessee Constitution. Parental rights are further protected by the Due Process Clause of the United States Constitution.

In light of these fundamental rights, in child custody disputes between a parent and non-parent, the parent is afforded a presumption of “superior parental rights.” Parental rights are superior to the rights of others and continue without interruption unless a parent consents to relinquish them, abandons the child, or forfeits parental rights by conduct that substantially harms the child.

In a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after noticed required by due process, of substantial harm to the child. Only then may a court engage in a general “best interest of the child” evaluation in making a determination of custody. Therefore, the court must first address the issue of substantial harm.

Due to the constitutional protections afforded parents, the burden is on the non-parent to establish by clear and convincing evidence that the child will be exposed to substantial harm if placed in the custody of the biological parent. In determining whether a child may be exposed to substantial harm if custody were placed with the biological parent, a determination of whether a parent is fit or unfit has been used.

The Court summarized the trial court’s findings as follows:

The trial court found that several witnesses established “a pattern over the years of the extensive sale of illegal drugs by [Father], with as much as three pounds of marijuana being sold in one transaction.” The court further found there were “consistent stories of the marijuana being stored in the freezer at [Father's] home, even when the child lived in the home,” and that “the credible history of drug sales continues into the time period since the divorce.” The trial court found a pattern of “thievery, of out of control anger, of domestic violence, and of an inability to hold down jobs.” The court noted one incident in which Father engaged in a form of road rage while chasing Mother’s car when [Child] was in the car as well. The trial court also made note of testimony of severe bruising on Mother’s neck during the marriage. The trial court found the testimony as a whole was enough to clearly and convincingly established that Father was unfit to parent and he posed a substantial risk of harm to [Child] because of his dangerous temper and danger of exposing the child to drug dealing, drug use, irresponsible driving, and exposure to undesirable associates.

[T]he court found that Father “evaded questions, took the Fifth Amendment, ignored accusations, and was caught in so many untruths that he had little if any credibility.”

After reviewing the record, the Court concluded:

Father’s drug use, his drug trafficking, and the possession of large quantities of drugs when [Child] was present posed and continues to pose a threat of substantial harm to [Child]. Also posing a threat of substantial harm to [Child] are the numerous incidents of Father’s out of control temper and the history of domestic violence, evidence of which is based upon the testimony of numerous witnesses. . . .

Based upon the foregoing, we have concluded that the facts as found by the trial court demonstrate that Father poses a substantial risk of harm to [Child] should she be placed in his sole custody. To conclude otherwise would require that we ignore the overwhelming evidence in this case, which is essentially uncontradicted.

Regarding Child’s best interests, the Court stated:

We agree with the trial court’s determination that it is in [Child's] best interest to reside in a stable home without exposure to illegal activity, domestic violence, and the risk of physical or emotional harm. [Maternal Grandmother] has established that she can provide a stable home. The paternal grandparents, who offered themselves as an alternative to [Maternal Grandmother] and who do not have superior rights to [Maternal Grandmother], could provide a stable and safe home for [Child] if they were not in complete denial of Father’s drug use and activities, the bad elements he regularly associates with, and his violent conduct. Therefore, it is not in [Child's] best interest for the paternal grandparents to be the primary residential parents instead of [Maternal Grandmother].

Accordingly, the trial court was affirmed.

Mook v. Mook (Tennessee Court of Appeals, Middle Section, November 6, 2012).

Information provided by K.O. Herston: Knoxville, Tennessee Matrimonial, Divorce and Family Law Attorney.


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