Facts: Mother and Father are the unmarried parents of two children.

The parents eventually separated, and Father returned to his family home in Louisiana. An agreed order was entered naming Mother the primary residential parent. Father was granted visitation with the children for the entire month of June, one weekend per month, and alternating holidays.

For the next three years, the children moved back and forth between Mother’s home in Tennessee and the home of her father, i.e., the children’s maternal grandfather, in North Carolina. Father paid no support to Mother or Grandfather, although he did provide for the children’s needs when they were visiting with him.

At some point Grandfather began denying Father’s request for visitation.

Father filed a petition to change custody from Mother to Father.

Grandfather was allowed to intervene in the custody dispute because Grandfather alleged both parents failed to support and care for the children. Grandfather asked that custody be awarded to him.

The proof showed Father worked on an oil rig such that he worked for two weeks straight and then was off for two weeks. When he wasn’t working on the oil rig, Father lived with his grandmother.

The trial court awarded custody to Grandfather, finding that substantial harm to the children would result if custody were granted to Father. The trial court said that if the children moved to Louisiana with Father there would be “too many unknowns” because the court did not know who would care for the children or where they would go to school. The court also observed that a grant of custody to Father would basically be trading one grandparent for another considering his current work schedule and living situation.

Father appealed.

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

In a contest between a parent and a nonparent, a parent cannot be deprived of the custody of the child unless there has been a finding 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.

Tennessee courts have not undertaken to define the circumstances that pose a risk of substantial harm to a child. Such circumstances are not amenable to precise definition because of the variability of human conduct. However, the use of the modifier “substantial” indicates two things. First, it connotes a real hazard or danger that is not minor, trivial, or insignificant. Second, it indicates that the harm it must be more than a theoretical possibility. While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not.

The Court noted the trial court focused its analysis on Father’s past nonpayment of support and his employment schedule:

Father admitted that part of his reluctance to pay child support to Grandfather was because Grandfather thwarted his attempts to visit the Children and referred to Father as a “sperm donor.” During his testimony, Grandfather acknowledged that there had been times when Father had asked to see the Children but Grandfather refused his requests. Although Grandfather’s behavior does not justify Father’s non-payment of child support, it does negate Grandfather’s and Mother’s assertions that Father “abandoned” the Children or would fail to support the Children if they were in his custody. Father has demonstrated through the years that he is competent to provide for the Children while they are in his care. Father has also demonstrated a consistent desire to spend time with the Children when allowed to do so. Thus, Father’s past failure to pay child support, standing alone, is insufficient to establish substantial harm.

With regard to Father’s work schedule, the trial court stated that Father’s two-week-on, two-week-off schedule “essentially requires the Court to choose between the maternal grandfather and the paternal great-grandmother whom the Father has indicated would care for the children while he was working on the oil rig.” The court made this finding despite Father’s testimony that he was willing to seek full-time employment in Louisiana if the Children were placed in his care and despite the substantial support system that Father and the Children would enjoy due to the presence of the paternal grandmother and great-grandmother. Grandfather acknowledged that he related well to Father’s family and offered no concerns about their influence on the Children. Grandfather also admitted that the Children always enjoyed their co-parenting time with Father and his family. We therefore determine that a finding of substantial harm is not supported by clear and convincing evidence.

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Based on the totality of the evidence, we determine that Mother and Grandfather did not clearly and convincingly establish that the Children would be exposed to a risk of substantial harm if they were placed in Father’s care. We conclude that the trial court erred by granting primary custody of the Children to Grandfather, who is a non-parent.

Thus, the award of custody to Grandfather was reversed and the case remanded to determine whether a material change in circumstance had occurred since the initial custody award to Mother and whether modifying the primary residential parent from Mother to Father is in the children’s best interest.

Vinson v. Ball (Tennessee Court of Appeals, Eastern Section, November 9, 2016).

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