Facts: Mother was designated the primary residential parent of Child when she and Father divorced.

Years later, Father obtained emergency temporary custody because Mother was homeless and suffering from mental health issues. Shortly thereafter, the trial court entered an “Interim Agreed Order” providing that Child would physically reside with his maternal grandmother. A year later, an “Agreed Temporary Order” was entered that awarded Grandmother physical custody of Child while providing that legal custody was “split between the [parents].”

The following year, Mother filed a petition for custody where she asserted she was employed, had appropriate housing, and had undergone mental health treatment and counseling.

Grandmother responded by asserting Mother had waived her superior parental rights.

The trial court had to determine the applicable legal standard that would govern the case. Mother argued she should be accorded a presumption of superior parental rights against the claim for custody made by Grandmother. Grandmother argued mother waived her superior parental rights such that the Agreed Temporary Order could not be modified unless Mother showed a material change in circumstances.

The trial court concluded that Mother was entitled to the presumption of superior parental rights. Thus, the trial court ruled that Grandmother had the burden of proving by clear and convincing evidence that returning Child to Mother “will expose the child to substantial harm.”

At the conclusion of the proof, the trial court ruled that Grandmother had not met her burden of proof and, therefore, returned physical custody of Child to Mother. Grandmother was awarded grandparent visitation.

Grandmother appealed.

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

Under Tennessee law, there are four circumstances in which a parent retains a presumption of superior parental rights as to custody:

(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.

The fourth circumstance was at issue here.

An interim order is one that adjudicates an issue preliminarily, while a final order fully and completely defines the parties’ rights with regard to the issue, leaving nothing else for the trial court to do. Trial courts have discretion to grant temporary custody arrangements in circumstances where the trial court does not have sufficient information to make a permanent custody decision or where the health, safety, or welfare of the child or children are imperiled.

Grandmother argued the terms “temporary” and “interim” should be disregarded as pure surplusage when used in the context of child custody, particularly when Child resided with her for several years.

The Court agreed that Mother retained her superior parental rights, explaining:

The fact that [Child] remained with Grandmother for several years following the entry of the temporary custody orders does not negate Mother’s ability to rely upon a presumption of superior parental rights. Indeed, it would be error for us to disregard the trial court’s designation of the custody arrangement—which was agreed to by the parties—as temporary. Although Mother agreed to allow [Child] to physically reside with Grandmother pursuant to the [Agreed Temporary Order], we fail to see how this should have resulted in a forfeiture of her superior parental rights when her assent was to an order that was specifically marked as “temporary.” Again, when a parent cedes only temporary custody to a non-parent, the order transferring custody does not extinguish a biological parent’s superior parental rights. . . .

The trial court was correct in requiring Grandmother to prove, by clear and convincing evidence, that [Child] would be exposed to substantial harm if returned to Mother.

Accordingly, the trial court was affirmed.

Bryan v. Miller (Tennessee Court of Appeals, Middle Section, August 8, 2016).

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