Facts: Child was born to unmarried Mother and Father. Father filed a Petition to Establish Paternity in which he asserted that he had voluntarily supported Child and had emotionally bonded with her, but that Mother decided two months after Child’s birth to eliminate him from her life. Shortly thereafter, Mother filed a Petition to Establish Parentage.
A hearing occurred before the Juvenile Court Referee, after which Mother was designated the primary residential parent and visitation was ordered for Father. Mother requested a rehearing before the Juvenile Court Judge, alleging that “visitation was unfairly decided.” Before the rehearing could occur, the parties filed numerous motions, the substance of which indicates that Father was primarily attempting to exercise his visitation rights while Mother was trying to prevent Father from exercising any visitation with Child.
The final custody hearing took place before the Juvenile Court Judge over 10 separate days. The trial court filed a 40 page final custody order in which it designated Father as Child’s primary residential parent. Mother was awarded two hours of supervised visitation each week. The trial court stated it would consider modifying visitation if Mother complied with the rules of visitation, refrained from violating prior court orders about speaking negatively about Father in the presence of Child, and followed the recommendations of counselors. The trial court also recommended that Mother receive anger management and parent education training.
On Appeal: The Court of Appeals affirmed the trial court.
Legal Standard. Mother first argued the trial court applied an incorrect legal standard. Specifically, Mother argued the trial court erred by treating the preceding as one for an initial child custody order instead of one seeking to modify an initial child custody order.
When a party seeks review by the juvenile court judge of a referee’s decision, the referee’s report and findings, including any order reflecting such findings, remain only a recommendation. Review of a referee’s decision in a juvenile case is accomplished through a de novo hearing before the judge. The de novo hearing is not a review of the record presented to the referee, but is a full evidentiary hearing akin to a new trial. In a de novo hearing, the juvenile court judge must decide the issues without regard to the actions of the referee.
Mother’s argument was rejected. The Court said the Referee’s Parentage Order remained a recommendation because Mother sought review by the Juvenile Court Judge. It never became an order of the court. The Juvenile Court properly ruled that the proceeding before it was one to establish an initial child custody order and that the proper legal standard was the child’s best interest.
Best Interest of Child. Mother then argued the trial court erred in naming Father the primary residential parent. In its best interest analysis, the trial court considered the relevant factors set out in Tennessee Code Annotated § 36-6-106(a). After reviewing the record — and citing several examples of deplorable conduct by Mother —the Court reasoned:
The trial court applied each of the statutory best interest factors and found that some did not indicate custody with one parent over the other was in the best interest of the child. The court found that other factors favored Father as the primary residential parent….
The decisive factor for the trial court, however, was “[e]ach parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interest of the child.” The court set out its reasoning as follows:
No proof has been presented that either parent lacks the ability to perform day-to-day parenting tasks. However, this factor goes overwhelmingly in favor of the father. After being before the court on numerous occasions, the mother has repeatedly refused to abide by the Court’s order regarding derogatory remarks about the father in the presence of the minor child, visitation, and medical issues. On April 2, 2010, the Court emphasized “to both parties the impact their inability to co-parent effectively has on [Child] and to a custody determination.” However, the mother has continuously allowed her feelings about the father to control her behavior despite numerous Court Orders. Furthermore, the Court previously ruled that the mother was in contempt for withholding visitation on at least one occasion, although there was testimony regarding more incidents. This has led to the parents’ inability to effectively co-parent for the benefit of the minor child. The mother has proved that she is completely unwilling to promote, encourage or facilitate a close and continuing parent-child relationship between the child and her father. The father has testified, however that he encourages a relationship between the mother and child by speaking to the child positively about the mother, soothing her when the child cries for the mother, buying the mother a mother’s day card, and offering and driving the minor child to Nashville, TN for Christmas day 2010 visitation with the mother and child. This is a deciding factor in this case, and the court finds that the father is definitely the more satisfactory parent as it pertains to this factor.
The willingness of a parent to facilitate and encourage a close relationship between the child and the other parent is an important factor for the courts to consider in custody cases. Indeed, our legislature has stated that “the relationship between the child and each parent should be fostered unless inconsistent with the child’s best interests.”
[Tennessee] case law is accordingly replete with examples where the greater willingness of one parent to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent has been the decisive factor in determining parenting arrangements….
The trial court found in this case that, “[t]he mother has proved that she is completely unwilling to promote, encourage or facilitate a close and continuing parent-child relationship between the child and her father.” We agree. The evidence also showed that Father was a loving, caring parent, and that he was willing to promote and encourage [Child's] relationship with Mother for the sake of the child.
Accordingly, the order of the trial court was affirmed.
Information provided by K.O. Herston: Knoxville, Tennessee Divorce, Matrimonial and Family Law Attorney.