Facts: Mother and Father married and had three children. After nine years of marriage, they separated and never lived together as husband and wife following their separation.

Four years after their separation, Mother filed for divorce.

Almost two years after filing for divorce, Mother was tragically shot and killed in the line of duty as a police officer with the Memphis Police Department while serving a search warrant.

The children’s maternal grandmother filed a petition seeking to be appointed guardian for the children. Grandmother asserted that Father had a history of domestic abuse and had failed to pay child support or participate in the children’s lives for the past three years.

Father filed a counter-petition seeking guardianship of the children.

The trial court emphasized the proceeding was “not a custody proceeding” and, therefore, the trial court proceeded with a best interest analysis under the guardianship statutes at Tennessee Code § 34-2-101, et seq.

The trial court found Father had very little interaction with his children following his separation from Mother; that he received $30,000 following the death of Mother but failed to pay child support, instead opting to purchase an extended cab pickup truck; that he pleaded guilty to stalking and served 11 months in jail, and that he had a history of physical altercations with others. The trial court further found the maternal grandmother was not an appropriate guardian for the children.

Instead, the court determined that the children’s maternal grandfather — who did not even petition for guardianship — should be appointed guardian inasmuch as he had been a primary support giver for the children after Mother and Father separated.

Father appealed.

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

Father argued the trial court deprived him of his constitutional right to the care and custody of his children without first finding that he posed a substantial risk of harm to the children or is an unfit parent.

A parent has a fundamental liberty interest in making decisions concerning the care, custody, and control of his or her children.

In disputes between a parent and a non-parent, parents are afforded a presumption of “superior parental rights.” Furthermore, these superior parental rights continue without interruption unless they parent consents to relinquish them, abandons the child, or forfeits parental rights by conduct that substantially harms the child.

Absent a finding of substantial harm, the deprivation of the custody of a child would result in an abridgment of the parent’s fundamental right to privacy protected by the United State and Tennessee Constitutions.

Accordingly, in a contest between a parent and a non-parent, a parent cannot be deprived of the custody of the child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then made court engage in a general “best interest of the child” evaluation in making a determination of custody.

While circumstances that constitute substantial harm are difficult to define precisely, Tennessee courts say the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or insignificant. Second, it indicates that the harm must be more than a theoretical possibility. While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm is more likely than not to occur.

After reviewing the record, the Court of Appeals reasoned:

We disagree with the trial court’s interpretation that appointing a guardian pursuant to Tennessee Code § 34-2-103 requires nothing more than a best interest analysis when the choice of guardian is between a biological parent and a non-parent. Where a parent is not appointed as the guardian of his or her children, that parent’s fundamental constitutional rights to the care, custody, and control of his or her children are implicated….

Here, the trial court failed to make an express finding that there was a risk of substantial harm to the children should Father be named their guardian. Therefore, we find that the trial court acted prematurely in awarding guardianship of Father’s [] children . . . to Grandfather based solely on a best interests inquiry.

Accordingly, the trial court’s award of guardianship to the children’s maternal grandfather was reversed and the case remanded to the trial court for a determination of whether Father poses a risk of substantial harm to the children..

In re Guardianship of Taylour L. (Tennessee Court of Appeals, Western Section, January 29, 2015).

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