Best Interest Assessment Reversed for Abuse of Discretion in Chattanooga, TN Child Custody Case: C.W.H. v. L.A.S.

Facts: Mother and Father, who were never married, entered an agreed parenting plan establishing a long-distance parenting schedule because of Mother’s relocation with the children to Ohio (and later Nevada). The agreed parenting plan designated Mother as the primary residential parent.

tennessee divorceVery shortly thereafter, Father petitioned to change custody on the grounds that the agreed parenting plan had been procured by fraud. Specifically, Father claimed Mother represented in their negotiations that she was working as an “independent contractor.” Father belatedly learned that Mother actually was working as a licensed prostitute in Nevada at the Moonlight Bunny Ranch.

At the hearing, the proof showed the children were not exposed to Mother’s occupation. Furthermore, by the time of trial, Mother was out of the prostitution business and employed as a social worker in Nevada after having received her master’s degree in social work and her provisional license from the state of Nevada for social work.

The trial court found there was a material change in circumstances for the children because of Mother’s deceit and Mother’s occupation as a prostitute. The trial court further found it was in the children’s best interest that custody be awarded to Father. Notably, the trial court did not conduct a statutory best interest analysis of any sort.

Mother appealed. The Court of Appeals remanded the case to the trial court to conduct the statutory best interest analysis. I covered that appeal here.

On remand, neither party chose to present new evidence. The trial court conducted the required best interest analysis and, again, ruled to change custody from Mother to Father.

For the second time, Mother appealed.

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

The Court reversed the trial court’s finding that Mother’s temporary employment as a licensed prostitute constituted a material change of circumstances warranting modification of the parenting plan:

To qualify as “material,” the change in circumstances must be one that affects the child’s well-being in a meaningful way. There is no evidence in this record showing that Mother’s occupation as a licensed prostitute in Nevada has affected the children. . . . Because Father failed to establish the children were affected, we must hold that the evidence preponderates against the finding that Father established that Mother’s work as a licensed prostitute met the legal standard for a material change in circumstances.

The Court did find, however, that Mother’s hostility to Father and Stepmother constitute a material change of circumstances. With that threshold finding, the Court proceeded to consider the children’s best interest.

In child custody cases, the needs of the children are paramount; the desires of the parents are secondary. Questions related to custody and visitation should be directed toward promoting the child’s best interest placing him or her in an environment that will best serve his or her physical and emotional needs. To make this determination, Tennessee courts must consider the statutory factors found in Tennessee Code Annotated § 36-6-106(a).

Determining a child’s best interest is a fact-sensitive inquiry that does not call for rote examination of each of the relevant factors in any determination of whether the sum of the factors tips in favor of or against the parent. The relevancy and weight to be given each factor depends on the unique facts of each case.

The Court complained that much of the trial court’s best interest analysis relied on its finding that Mother’s work in prostitution was ongoing, which the Court found to be entirely speculative and contradicted by the evidence:

There is significant and substantial evidence supporting the conclusion that Mother is no longer working as a prostitute. The court admitted into evidence earnings statements from Mother’s current employment at the social worker, as well as copies of her provisional Nevada social workers license, and related diplomas and academic awards. As previously noted, there was no testimony at trial indicating that she was currently working as a prostitute.

After examining the evidence in detail, the Court found the trial court abused its discretion:

It is clear that both parents at times have acted in a manner that failed to put the children’s interest first. However, we find the trial court relied heavily on a finding that Mother’s work in prostitution was ongoing to reach its conclusion that it is in the children’s best interest to designate Father as the primary residential parent. We find the evidence does not support this conclusion. The trial court also failed to take into account Father’s a significant child support and medical arrearages of $10,027. We also find it significant that Father admitted to using illegal drugs in the family home when the children were present. For all of these reasons, we hold that the evidence preponderates against the trial court’s finding that the best interest of the children mandates that Father be the children’s primary residential parent. For reasons stated above, the trial court abused its discretion in designating Father as the primary residential parent.

Thus, the trial court’s judgment was reversed. Mother was restored to being the children’s primary residential parent. The Court of Appeals even ordered Father to deliver the children to Mother in Nevada “no later than 20 days following the entry of this order.”

K.O.’s Comment: (1) Because of the tremendous deference given to a trial court’s findings and discretionary decisions, it is rare for the Court of Appeals to find that the trial court abused its discretion. This case is among the few that show it can happen.

(2) When I covered the first appeal, I chastised the Court for including information that could identify the parties. This time around, the Court changed course, explaining:

In order to preserve the anonymity of the minor children and related individuals in this case, involving, as it does, sensitive matters, we have abbreviated their names.

C.W.H. v. L.A.S. (Tennessee Court of Appeals, Eastern Section, October 31, 2016).

Information provided by K.O. Herston: Knoxville, Tennessee 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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