In the recent opinion Sharp v. Stevenson, we see the three-member Court of Appeals taking the unusual step of splitting 2-1 to reverse the trial court and writing three separate opinions. Why?
Facts: In 2003, while the parents’ divorce was pending, Father and maternal grandparents were awarded temporary custody of Children. In 2004, when the divorce was finalized, Father was awarded custody of Children. In 2005, Children were removed from Father’s custody via a temporary restraining order, which Father subsequently moved to dismiss. There is no indication in the record of the disposition of Father’s motion. In May 2007, Father and maternal grandparents entered an agreed order adopting a parenting plan granting custody of Children to the maternal grandparents with Father having 104 days of parenting time. Father contended the plan was a means to clarify “visitation and responsibilities,” not a means to cede his superior parental rights. In December 2007, Father filed a petition alleging a material change of circumstances and seeking modification of the parenting plan. The trial court denied his petition, finding that Father’s actions indicated his intent to waive his superior parental rights. Father appealed.
Judge Farmer, writing for the majority, found the May 2007 parenting plan was clearly a temporary parenting plan intended to modify the 2005 temporary order of custody.
The intention of the legislature to foster cooperation between divorcing parents is more fully achieved by recognizing that parents who enter permanent agreed parenting plans, whether named primary or alternate residential parent, maintain their status as parents with the attendant rights and responsibilities, including rights superior to those of third parties. Non-parents seeking custody of a minor child must demonstrate that the natural parent is unfit, or that substantial harm will result if the child is placed in that parent’s care, regardless of whether the natural parent is the primary residential parent or the alternate residential parent. A parenting plan is simply not the equivalent of a valid order awarding custody to a non-parent.
Mr. Sharp has demonstrated by a preponderance of the evidence that he did not waive his superior parental rights by allowing the Stevensons to be named primary residential parents when the parenting plan was entered in the trial court in May 2007.
In a separate opinion concurring in the result but not in the reasoning, Judge Stafford found the prior orders were not temporary.
Nothing in the record indicates that this parenting plan was a temporary or informal order. As noted by the trial court, two previous orders between these parties were specifically designated as temporary, but this one was not. In fact, this parenting plan is titled “Permanent Parenting Plan.” Additionally, nothing in the consent order or parenting plan indicates that it is temporary, or places a condition on the plan, or signifies that it will later be reconsidered by the court. Accordingly, I would affirm the trial court’s finding that the parenting plan was not temporary….
I would hold, as a matter of law, that a parent’s consent to relinquish his or her superior parental rights must be shown by clear and convincing evidence. Furthermore, because our Supreme Court has stated that the parent waiving his or her superior parental rights must do so with knowledge of the consequences, I would hold that the knowledge of the consequences of the transfer, must also be shown by clear and convincing evidence.
In her dissent, Judge Kirby wrote:
I would hold that, absent other evidence, once biological parents agree to a valid consent order transferring custody of the child to a non-parent, thereafter, the parents “have no superior rights to the custody of” their child. The parents, however, have the opportunity to show that, when they agreed to relinquish custody, they did not have knowledge of the consequences of their decision. If they can carry the burden of proving that they did not have such knowledge, then they can assert their superior right to custody in the modification proceedings.
Hang on, folks, because this one is not over. I suspect the Tennessee Supreme Court will choose to weigh in on this case.