Facts: Mother and Father are the unwed parents of Child. After establishing parentage of Child, Father petitioned for full custody. Father was subsequently awarded temporary visitation. While the case was pending, Mother moved with Child to Texas, where they have lived since.

Father petitioned that Mother be held in contempt for failing to comply with Father’s temporary visitation order. When the matter was heard, Father’s contempt petition was dismissed. At the same hearing, the trial court awarded joint custody to the parties, named Mother the primary residential parent, and granted visitation rights to Father.

At Father’s request, the matter was reheard before a different judge. Again, Father petitioned the trial court to find Mother in contempt for her failure to comply with the visitation order.

At the hearing on Father’s petition, Father requested that the trial court award him temporary custody of Child. The trial court declined to do so. The trial judge then warned Father that if he continued to argue, his petition would be dismissed and his case would be transferred to Texas. Father did not heed the trial court’s warning. Father continued to argue, and the trial court dismissed Father’s petition and ordered that the case be transferred to the appropriate court in Texas. The trial court specifically found that Father had exhibited an inability to control his anger both in the courtroom and in his interactions with the court clerk. More importantly, the trial court found “[Texas] is now the most convenient forum in which to determine this child’s best interest.”

Father appealed.

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

Father argued that the trial court erred in transferring jurisdiction of the case to Texas. Mother did not file any brief and response, nor did she participate in oral argument.

A Tennessee court may, on its own motion, decline to exercise its jurisdiction in a child custody case if it determines that a court of another state is a more appropriate forum. However, prior to doing so, certain requirements must be met. Tennessee Code Annotated § 36-6-222(b) provides:

(b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) The length of time the child has resided outside this state;
(2) The distance between the court in this state and the court in the state that would assume jurisdiction;
(3) The relative financial circumstances of the parties;
(4) Any agreement of the parties as to which state should assume jurisdiction;
(5) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
(6) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;
(7) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; and
(8) The familiarity of the court of each state with the facts and issues in the pending litigation.

After reviewing the record, the Court ruled:

A review of the transcript shows that the judge decided to transfer the case after becoming increasingly frustrated with Father’s persistent requests and argumentative tone. It does not appear that the parties were ever given the opportunity to submit evidence [on the statutory factors listed above]….

In addition to requiring further proceedings be transferred to Texas, the court also made its . . . temporary custody order permanent, ordered supervised visitation for Father, ordered Father to submit to a full mental health evaluation and enjoined him from filing further pleadings absent proof of treatment, and dismissed Father’s contempt petition. A review of the . . . transcript reveals that the court undertook these actions without first hearing any evidence from the parties. Such action by the court constitutes an abuse of its discretion. Based on the foregoing, we vacate the lower court’s order and remand the case for further proceedings before a different trial judge.

Accordingly, the trial court’s judgment was reversed and the case was remanded to a new judge.

In re Lazaria C.R.H. (Tennessee Court of Appeals, Western Section, January 9, 2014).

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