Facts: In divorce, Mother was named primary residential parent of Children. Two years later, Mother and Children moved in with maternal grandparents, whereupon it was discovered that Mother had a drug problem. Mother left rehab and went “missing,” whereupon Father and maternal grandparents filed a joint petition to remove custody from Mother. Trial court granted the petition and, with Father’s consent, awarded temporary custody to the maternal grandparents. Mother surfaced several months later, whereupon a mediation occurred. Parties entered into Mediated Agreement whereupon custody would remain with the grandparents, Father would enjoy his existing visitation, and Mother’s visitation would be strictly supervised. Father refused to sign Consent Order because he felt it conflicted with his understanding of Mediated Agreement. Father then petitioned for custody of Children. The maternal grandparents argued the Mediated Agreement should be enforced, and the trial court agreed. Father appealed.

The Court of Appeals reversed.

It is well-settled that the Tennessee Constitution protects a natural parent’s fundamental right to have the care and custody of his or her children. Parental rights are superior to the rights of others and continue without interruption unless a parent consents to relinquish them, abandons the child, or forfeits parental rights by conduct that substantially harms the child.

Due to these rights, courts deciding initial custody disputes must give natural parents a presumption of “superior parental rights” regarding the custody of their children. This means that in an initial custody dispute involving a parent and a non-parent, a natural parent may only be deprived of custody of a child upon a showing of substantial harm to the child. Specifically, the non-parent has the burden of establishing by clear and convincing evidence that the child will be exposed to substantial harm if placed in the custody of the parent. Only after a clear showing of substantial harm may the court engage in a general “best interest of the child” analysis. It follows then, that in an initial custody dispute, if a court awards custody to a non-parent over a parent’s objection, the original custody order must contain the requisite finding of substantial harm, or else it is invalid and unenforceable. . . .

[A] natural parent enjoys the presumption of superior rights under four circumstances:

(1) when no order exists that transfers custody from the natural parent;

(2) when the order transferring custody from the natural parent is accomplished by fraud or without notice to the parent;

(3) when the order transferring custody from the natural parent is invalid on its face; and

(4) when the natural parent cedes only temporary and informal custody to the non-parents.

When any of these circumstances are present in a given case, then protection of the natural parent’s right to have the care and custody their child demands that they be accorded a presumption of superior parental rights against claims of custody by non-parents.

Because no order was entered confirming or approving the arrangement set forth in the Mediation Agreement, Father was not precluded from asserting the superior parental rights doctrine. The case was remanded to the trial court, whereupon Father is entitled to the benefit of the superior parental rights doctrine.

In re Matter of Shelby R. (Tenn. Ct. App. May 18, 2010).

Information provided by K.O. Herston, Tennessee Divorce Lawyer.