Posted by: K.O. Herston | April 29, 2013

Father Awarded Custody and Allowed to Relocate in Murfreesboro Divorce: Port v. Hatton

Knoxville divorce lawyerFacts: The parties married in 2009 in their home state of North Carolina, where all of their extended family members live. Soon thereafter, they moved to the Nashville area because Mother wanted to pursue a music career. Shortly after the move, Mother gave birth to Child.

About a year after the move to Nashville, Father filed for divorce. He alleged that Mother was an alcoholic, that she was addicted to illegal drugs, that she neglected Child, and that she was mentally unstable. He asked to be named the primary residential parent and that he be allowed to relocate with Child to North Carolina.

At trial, Father presented evidence of Mother’s behavior that made him doubt her willingness to adequately care for Child, and sometimes even made him fear for Child’s safety. For example, he refused to drink some Gatorade one evening because it gave him heartburn, and Mother woke him up at 2:00 or 3:00 in the morning and forced him to drink it, because she had somehow become convinced that he was trying to poison her. Another evening, Father and Mother were lying in bed with the baby between them, and Mother reportedly said, “The devil is telling me to harm the child.” Father was understandably alarmed, and he urged her to go to a doctor because it was clear to him that she needed help.

Mother denied the truth of much of Father’s proof about her alleged abuse of alcohol and marijuana, and she offered testimony to minimize the implications of child neglect that Father’s account of her behavior suggested. She also gave a very optimistic account of the progress she was making her music career.

The trial court found it was in the best interest of Child that Father be named the primary residential parent. The trial court also held that Father’s proposed move to North Carolina was reasonable and that, without the relocation, Child would be at risk. Mother was awarded a limited amount of supervised visitation — up to three days per month — until she can show that she has no ongoing drug or alcohol abuse issues and can maintain a safe environment for Child. Mother appealed.

On Appeal: The Court of Appeals affirmed the trial court.

Mother challenged the trial court’s designation of Father as the primary residential parent. When making a residential parenting schedule, trial courts in Tennessee must consider the following factors:

(1) The parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult;

(2) The relative strength, nature, and stability of the child’s relationship with each parent, including whether a parent has taken greater responsibility for performing parenting responsibilities relating to the daily needs of the child;

(3) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interests of the child;

(4) Willful refusal to attend a court-ordered parent education seminar may be considered by the court as evidence of that parent’s lack of good faith in these proceedings;

(5) The disposition of each parent to provide the child with food, clothing, medical care, education and other necessary care;

(6) The degree to which a parent has been the primary caregiver, defined as the parent who has taken the greater responsibility for performing parental responsibilities;

(7) The love, affection, and emotional ties existing between each parent and the child;

(8) The emotional needs and developmental level of the child;

(9) The character and physical and emotional fitness of each parent as it relates to each parent’s ability to parent or the welfare of the child;

(10) The child’s interaction and interrelationships with siblings and with significant adults, as well as the child’s involvement with the child’s physical surroundings, school, or other significant activities;

(11) The importance of continuity in the child’s life and the length of time the child has lived in a stable, satisfactory environment;

(12) Evidence of physical or emotional abuse to the child, to the other parent or to any other person;

(13) The character and behavior of any other person who resides in or frequents the home of a parent and such person’s interactions with the child;

(14) The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children;

(15) Each parent’s employment schedule, and the court may make accommodations consistent with those schedules; and

(16) Any other factors deemed relevant by the court.

After reviewing the appellate record, the Court concluded that there was “more than enough evidence to support the trial court’s decision to designate Father as the primary residential parent,” writing:

For example, one of the statutory factors the court is directed to consider is “[t]he parent’s ability to instruct, inspire, and encourage the child to prepare for a life of service, and to compete successfully in the society that the child faces as an adult.”

This means among other things, that the parent must be willing to set aside his or her own personal preferences if necessary to meet the child’s needs. Father’s unrebutted and consistent testimony at trial show that he is well aware that the needs of his child have to be his first priority, and that he has made every effort to put his child first, and in his own words, to “be the adult your child needs you to be.”

In contrast, Mother’s testimony shows that her priorities were elsewhere and that she often took a very casual attitude towards the child’s well-being. For example, she admitted that she dropped the child on the floor, but her testimony showed that she didn’t feel it was any big deal. At other times, she would leave him strapped in his chair in a wet diaper, while drinking beer or smoking marijuana. Mother did not deny that she drank and smoked in the presence of the child, although she did attempt to minimize the frequency of such incidents and the quantity of alcohol or marijuana consumed….

These and some of the other statutory factors clearly support the adoption of a parenting plan that leaves the child primarily in Father’s care. A review of the record and all the relevant factors confirms the trial court’s decision on best interests. In sum, the trial court did not err in designating Father as the child’s primary residential parent.

Likewise, the Court found the restrictions on Mother’s visitation and Child’s relocation to North Carolina were supported by the evidence. The trial court was affirmed in all respects.

Port v. Hatton (Tennessee Court of Appeals, Middle Section, March 6, 2013).

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


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