Extraordinary Appeal Results in Reversal of Emergency Change in Custody in Roane County, TN Parenting Dispute: Milton v. Harness

Facts: Mother and Father never married. Child was born in 2010 in Arizona. Mother listed Father on Child’s birth certificate.

Initially, Father lived in California while Mother and Child lived in Arizona. Mother granted Father informal visitation with Child on a regular basis. Father would travel to Arizona for this visitation.

Later, Father moved to Arizona, where he continued his regular visitation with Child.

In 2013, Father moved to Tennessee. Despite the distance between Tennessee and Arizona, Father continued to exercise informal visitation with Child, including traveling to Arizona and bringing Child back to Tennessee for visitation.

In 2014, Mother and Child moved to Tennessee. Again, Father continued to exercise his informal visitation with Child.

In 2016, Mother and Child moved back to Arizona.

east tennessee child custodyTwo weeks later, Father petitioned to establish paternity and obtain custody of Child. Father alleged that Mother’s “numerous moves” with Child were often due to domestic disagreements between Mother and the head of whomever’s household she resided and were often made without a plan of where to go next. Father requested an emergency injunction giving custody to him or requiring Mother to return with Child to Tennessee until the case was resolved.

On the same day Father filed his petition, the trial court entered an ex parte injunction ordering Mother to return to Tennessee with Child.

When Mother was served with the ex parte injunction, she filed a motion to set it aside because she is the sole legal parent of Child and, therefore, was not required to provide Father with prior notice of her intent to relocate to Arizona with Child.

Father then filed a second petition seeking to have Mother held in contempt for not complying with the ex parte injunction. Father also requested another injunction transferring custody of Child to Father.

Without having heard Mother’s pending motion to set aside the initial ex parte injunction, the trial court entered a second ex parte injunction ordering the immediate transfer of custody to Father. Father traveled to Arizona with the injunction and, with the assistance of local law enforcement, removed Child from Mother’s custody, returning to Tennessee with Child the next day.

Mother filed an emergency motion to set aside both injunctions. Two weeks later, the trial court held a telephonic hearing that consisted of argument from counsel but no evidence. The trial court upheld the issuance of both injunctions.

Mother filed an application for an extraordinary appeal.

Shortly thereafter, the trial court entered a written order denying Mother’s emergency motion to set aside both ex parte injunctions, explaining that “it was not appropriate for [Mother] to pack up and leave the State of Tennessee” with Child.

The Court of Appeals granted Mother’s application for an extraordinary appeal.

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

Extraordinary appeals are only granted when the challenged ruling represents a fundamental illegality, fails to proceed according to the essential requirements of the law, is tantamount to the denial of the party’s day in court, is without legal authority, is a plain and palpable abuse of discretion, or results in either party losing a right or interest that may never be recaptured. These appeals are reserved only for extraordinary departures from the accepted and usual course of judicial proceedings.

Tennessee Code Annotated § 36-2-303 provides that absent a court order to the contrary, custody of a child born out of wedlock is with the mother. Here, Father’s acknowledgment of paternity did not vest him with any custody or visitation rights.

Under these circumstances, the Court held that Mother had no obligation to advise or notify Father of her intent to move with Child from Tennessee prior to doing so. The Court explained:

We are sympathetic to the fact that Father may have mistakenly believed that Mother’s moved to Arizona with Child, without prior notice, somehow violated his “rights” as Child’s father. However, given the fact that there has never been an initial custody order or parenting plan establishing the custodial rights of Father to Child, any “rights” Father may have as Child’s biological father, or even as Child’s putative biological father, did not include the “right” to notice of Mother’s intent to move to Arizona with Child. . . . Until such time as the trial court enters an order establishing Father to be Child’s legal father, there exists no legal parent-child relationship between Father and Child. Even where, as here, a mother has listed a putative father on a child’s birth certificate or informally by other acts, words, or cohabitation, acknowledged that a man was the child’s natural father, the putative father would still not have the legal status of a parent under Tennessee law. As such, it is unclear upon what basis the trial court concluded that it was “not appropriate for [Mother] to pack up and leave the State of Tennessee with the minor child,” or how this action justified the issuance of either ex parte injunction.

The Court summed it up:

With due respect to the trial court, we conclude that issuance of the ex parte injunctions in this case were not in accord with the essential requirements of law, denied Mother her day in court, were without legal authority, and resulted in a loss to Mother of her unqualified right to exclusive custody of Child during the pendency of the proceedings below, the purpose of which are to establish Father’s legal rights as a parent to Child.

Thus, both of the trial court’s ex parte injunctions were reversed. Father was directed to return Child to Mother pending further action in the trial court.

K.O.’s Comment: By all accounts, Father has been actively involved in Child’s life. But because he never went to court to establish his paternity, he never attained any legal rights associated with a parent-child relationship. No initial custody determination was ever made by a court. For that reason, Mother was entitled to relocate to Arizona with Child without giving notice to Father. The trial court’s ex parte (!!!) removal of custody from the child’s only legal parent and subsequent placement of the child in the custody of a legal “nonparent” was considered so extreme as to warrant summary reversal in an extraordinary appeal.

Milton v. Harness (Tennessee Court of Appeals, Eastern Section, March 3, 2017).

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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