Facts: Mother and Father are the parents of Child. Mother lives in Alabama, and Father lives in Tennessee. They share equal parenting time by exchanging custody every two weeks per a custody order from a Tennessee court.

Three years later, Mother petitions an Alabama court to modify the Tennessee parenting plan.

A week later, Father files his own modification petition in Tennessee.

Mother asks the Tennessee court to conduct a telephone conference with the Alabama court to determine appropriate jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

As requested, the Tennessee court has a telephone conference with the Alabama court and determines that Alabama is the more convenient forum. When counsel for both parents appear before the Tennessee court, the Tennessee court announces from the bench that the case “went to Alabama” because “it was most convenient.” The Tennessee court then dismisses Father’s modification petition. The Tennessee court does not give the parties access to a record of its communication with the Alabama court or provide additional details.

Father appeals.

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

The UCCJEA governs jurisdictional conflicts between Tennessee and other states over child-custody proceedings.

Once the Tennessee court makes its initial child-custody determination, it retains exclusive and continuing jurisdiction to modify the termination until, inter alia, a court in Tennessee or another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in Tennessee.

Still, the Tennessee court may decline to exercise its jurisdiction if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum.

When making this determination, Tennessee’s version of the UCCJEA requires the court to allow the parties to submit information relating to the following factors found at Tennessee Code Annotated § 36-6-222(b):

• the length of time the child has resided outside Tennessee;
• the distance between the Tennessee court and the court in the state that would assume jurisdiction;
• the relative financial circumstances of the parties;
• any agreement of the parties as to which state should assume jurisdiction;
• the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;
• the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;
• whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; and
• the familiarity of the court of each state with the facts and issues in the case.

The UCCJEA requires the court to ensure that a record of its communication with the other state’s court is made and provided to the parties. The record should detail the substance of the communication and inform the parties of the content of the conversation.

After reviewing the record, the Court concluded the trial court failed to comply with the UCCJEA:

Where, as in this case, the court does not permit the parties to participate in its communication with the court of the other state, the parties must be given the opportunity to present facts and legal arguments before a decision on jurisdiction is made. Although Mother and Father were given the opportunity to submit legal arguments, neither party was allowed to present facts before the Tennessee court announced its decision. . . . [T]he UCCJEA does not require a full evidentiary hearing prior to the trial court rendering a decision, but the parties must be given an opportunity to submit affidavits or other evidence to the court on the jurisdictional issue.

While Mother contends that both sides had ample opportunity to present their arguments, legal arguments are not facts. Here, the Tennessee court apparently based its decision solely on the conversation with the Alabama court. And, from this record, we cannot determine whether the Tennessee court considered the statutory factors found in Tennessee Code Annotated § 36-6-222(b).

Thus, the trial court’s dismissal was reversed and the case remanded for the parties to be given an opportunity to present their evidence and for the trial court to consider the statutory factors.

In re Arabella L. (Tennessee Court of Appeals, Middle Section, November 28, 2017).