Facts: Mother and Father are the parents of Child.

Prior to Child’s birth, Father was arrested and pleaded guilty to possession of cocaine for resale. Following Child’s birth, Father was arrested again and convicted of selling ecstasy. Father went to prison. Over the years, Father had little or no contact with Child.

Child spent most of his life in the custody of Mother and Grandmother. Because Mother lived a “party” lifestyle, much of the responsibility for raising Child fell upon Grandmother.

Years later, Mother entered an agreed order providing for grandparent visitation every Saturday evening.

Eventually, Father petitioned for custody of Child alleging, among other things, that Mother was subjecting Child to substandard living conditions and abusing prescription pain pills. While that matter was pending, Father was arrested yet again and charged with being a felon in possession of firearms and selling synthetic marijuana.

While Father’s most recent criminal charges were pending, Mother and Father reconciled and resumed living together.

Grandmother responded by petitioning to intervene in the pending custody dispute between Father and Mother.

A second child was then born to Mother and Father. They entered an agreed parenting plan providing for equal parenting time with their second child.

At trial, Grandmother testified the only potential danger Child would face if left in Mother’s custody would be exposure to Father.

Because this was a custody between a non-parent and parents, the trial court ruled Grandmother must show by clear and convincing evidence that each of the parents posed a risk of substantial harm to Child in order for Grandmother to receive custody of Child.

The trial court found Father posed a risk of substantial harm to Child the cause of his criminal background and the pending criminal charges. As to Mother, however, the trial court found no evidence that Child would be exposed to substantial harm if placed in her custody.

Grandmother lost the custody battle but retained grandparent visitation rights under the prior order.

Grandmother appealed.

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

A custody dispute between a parent and non-parent must begin with a recognition of the parent’s fundamental right, based in both the federal and State constitutions, to the care, custody, and control of his or her child. In a custody dispute with a non-parent, therefore, the parent is generally afforded a presumption of superior parental rights.

In a contest between a parent and a non-parent, a parent cannot be deprived of the custody of a child unless there has been a finding, after notice required by due process, of substantial harm to the child. Only then may a court engage in a general “best interest of the child” evaluation in making a determination of custody.

In applying this test, the burden rests on the non-parent to demonstrate through clear and convincing evidence that the child will be exposed to substantial harm if placed in the custody of the biological parent.

Tennessee courts have refused to define the precise circumstances that constitute a risk of substantial harm to the child, finding that such circumstances are not amenable to precise definition because of the variability of human conduct. The circumstances, however, must connote a real hazard or danger that is not minor, trivial, or insignificant and the harm must be more than a theoretical possibility. An inquiry into a person’s fitness as a parent has been utilized to determine whether they present a substantial risk of harm. To determine a parent’s fitness, Tennessee courts may consider their past conduct to aid in assessing their current parenting skills and whether they are capable of having custody of the child.

Accordingly, Grandmother had the burden of demonstrating, through clear and convincing evidence, that Mother and Father each posed a substantial risk of harm to Child before the trial court could consider whether granting Grandmother custody was in Child’s best interest.

Grandmother argued the trial court erred in granting custody of Child to Mother where Mother was residing with Father — whom the trial court found posed a substantial risk of harm to Child. The central thrust of this argument is that the risk of substantial harm posed by Father must be imputed to Mother because the two lived together, thereby allowing Father contact with Child.

After reviewing the record, the Court concluded:

The trial court considered Father’s criminal background in determining that Mother did not pose a substantial risk of harm to [Child]. The court explicitly stated that “even considering [Father’s] criminal history and pending charges, there is no evidence that [Child] will be exposed to substantial harm if placed in the custody of [Mother].” In making this statement, the court seems to have credited Mother’s testimony that she would take her children and leave if Father were to endanger them by engaging in illegal behavior. In support of its decision, the court also found that Mother had matured significantly between [Child]’s birth and the time of the hearing and had made adjustments in her life.

The facts . . . do not clearly and convincingly establish that Mother poses a risk of substantial harm to the child. Nothing in the record before us suggests that the trial court abused its discretion in crediting Mother’s testimony. Mother lived with Father in the sixteen months before trial and actively participated in raising the couple’s second child. She pledged to protect [Child] from any danger arising from Father’s past criminal behavior. Although Grandmother was apparently instrumental in [Child]’s upbringing, such a circumstance does not warrant removing [Child] from Mother’s custody.

Accordingly, the trial court was affirmed.

K.O.’s Comment: Tennessee Code § 36-6-106(a)(12) requires trial courts to consider “[t]he character and behavior of any person who resides in or frequents the home of a parent and such person’s interactions with the child” when determining a child’s best interest. Although it is appropriate to consider the people with whom a parent lives in deciding whether the parent presents a risk of substantial harm to a child, this case illustrates that factor alone is not determinative of the issue.

In re Caleb B. (Tennessee Court of Appeals, Middle Section, March 19, 2015).

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