Tennessee’s Jurisdiction to Modify Child Custody When Child Has Lived Out-of-State for Over 2-1/2 Years: In re Marquise T.G.

Facts: Child was born to unmarried parents in Indiana. Mother lived with Child for the first 18 months while Father resided in Tennessee. Mother and Child moved to Tennessee when Child was 18 months old. Paternity was established in Tennessee, child support was ordered, and Father’s his visitation rights were established. Nearly a year later, Mother asked her mother in Indiana to help out with Child. The maternal grandmother drove to Tennessee, picked Child up, and brought him to Indiana to live with her. The maternal grandmother acted as Child’s primary caretaker for the next 30 months. Around the two years after that, Father filed a petition to modify custody seeking to be named the primary residential parent for Child. The maternal grandmother entered a limited appearance arguing that any litigation concerning Child should take place in Indiana. Father argued Tennessee had jurisdiction to rule on his petition because he and Mother both reside in Tennessee and the Tennessee court had issued a prior order naming Mother the primary residential parent and granting Father visitation rights. The trial court concluded it had jurisdiction to rule on Father’s petition. Thus, it denied the maternal grandmother’s request for dismissal but granted her right to intervene in the litigation for the purpose of protecting her visitation rights as a grandparent. After a trial, Mother was named the primary residential parent, Father was awarded 135 days of visitation each year, and the maternal grandmother was awarded visitation for two weeks in July each year. The maternal grandmother appealed.

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

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), codified at Tennessee Code Annotated §§ 36-6-201 et seq., governs initial child custody decisions as well as proceedings to modify custody. The UCCJEA explicitly gives the trial court that made the earlier custody decision the authority to determine whether its exclusive, continuing jurisdiction should continue or whether its jurisdiction has ended. Tennessee courts have described this authority as “a right of first refusal.”

Even if the child has acquired a new home state, the original decree state retains exclusive, continuing jurisdiction, so long as the general requisites of the substantial jurisdiction provisions are met. If the relationship between the child and the person remaining in the state with exclusive, continuing jurisdiction becomes so attenuated that the court could no longer find significant connections and substantial evidence, jurisdiction would no longer exist.

Thus, the Tennessee court making the original determination retains jurisdiction until it determines that neither the child nor the child and one parent have a significant connection with Tennessee and that substantial evidence relevant to the child’s best interest is no longer available in Tennessee. The initial rendering court retains exclusive, continuing jurisdiction so long as a parent remains in Tennessee and substantial evidence is still available in this state concerning the child’s care, protection, training, and personal relationships. In other words, so long as a parent remains in Tennessee and there is substantial evidence in Tennessee regarding the child’s care, protection, training, and personal relationships, Tennessee retains continuing exclusive jurisdiction to modify its earlier decree. The Court ruled:

Because both Mother and Father reside in Tennessee and have continuously resided in Tennessee since the initial custody determination was made . . . naming Mother primary residential parent, we hold the Tennessee trial court had subject matter jurisdiction over Father’s petition and properly exercised its discretion to retain jurisdiction over [Child’s] custody.

The maternal grandmother then argued the trial court erred in allowing her to intervene only for the limited purpose of protecting her visitation rights as a grandparent. The Court made quick work of this argument, stating:

Because [the maternal grandmother], as a non-parent, cannot compete with Mother’s or Father’s rights to have custody of [Child] based on the facts presented to the trial court, we conclude the trial court did not abuse its discretion in limiting [the maternal grandmother’s] role as an intervenor to allow her to pursue her visitation rights as set forth in Tennessee Code Annotated § 36-6-306.

In re Marquise T.G. (Tennessee Court of Appeals, Middle Section, May 18, 2012).

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

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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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