In re Joseph D. N.

Facts: Unmarried parents had a child and lived together for some time. They ultimately split, Father paying child support and enjoying regular visitation. Mother became engaged to another man and started unilaterally denying Father his overnight visitation.

Mother told Father that the only visitation she would let him exercise would be at McDonald’s, and that her fiancé would have to supervise. Father did not agree to those conditions. Instead, he started calling Mother to ask her to let him see the child. Those calls quickly devolved into arguments and insults and did not lead to the results Father wanted. At some point, Father’s phone calls became too frequent (Mother testified that he called her 30 times in one day; he admitted to 12). In August of 2008, Mother swore out a harassment warrant against Father, which resulted in a brief stay in jail and a condition of bail that prohibited him from having any contact with Mother, directly or indirectly.

Mother filed a petition to terminate Father’s parental rights so her fiancé could adopt Child. Mother alleged Father’s willful failure to visit Child in the four months preceding the petition as grounds for the termination. Incredibly, the trial court granted the petition. Father appealed.

In reversing the trial court, the Court of Appeals prevented a terrible injustice.

Failure to visit or support a child is ‘willful’ when a person is aware of his or her duty to visit or support, has the capacity to do so, makes no attempt to do so, and has no justifiable excuse for not doing so. . . .  The proof in this case showed that in order to be able to visit his child, Father would have had to either accede to Mother’s onerous conditions, violate a condition of bail, or institute a court proceeding that he could not afford. Under those circumstances, we hold that the trial court erred in finding that Father had abandoned his child by willfully failing to visit. . . .  Father and child have been denied visitation with each other for a long time, especially in view of the child’s age. Consequently, the trial court should act promptly to establish a schedule establishing Father’s rights to time with his child.

In re Joseph D. N. (Tenn. Ct. App. Mar. 3, 2010).

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K.O. Herston is a family-law attorney in Knoxville, Tennessee whose practice is devoted exclusively to family law, including divorce, child custody, child support, alimony, prenuptial agreements, and other aspects of family law.

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