Failure to Consider Child’s Preference Is Reversible Error in Memphis, TN Child-Custody Dispute: Roberts v. Roberts

Facts: In their divorce, Father was designated the primary residential parent for Child.

Three years later, Father petitioned to modify the parenting schedule. Mother counter-petitioned to change custody and limit Father’s parenting time.

Throughout the three-day trial, Father repeatedly requested that Child — now a teenager — be allowed to express his preference regarding where he wanted to live.

child's preferenceThe trial court refused Father’s requests, stating that it preferred not to involve children in their parents’ affairs unless, in the court’s opinion, it became necessary to do so. Father then made an offer of proof that Child that Child “absolutely does not want to live with Mother full time.”

The trial court ultimately found it was in Child’s best interest to change custody and for Mother to be designated as Child’s primary residential parent.

Father appealed.

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

Tennessee Code Annotated § 36-6-106 requires courts to consider all relevant factors, including a nonexclusive list of 15 factors, when determining the best interest of the child. Determining a child’s best interest is a fact-sensitive inquiry, and the relevancy and weight to be given each factor depends on the unique facts of each case. The determination of what is in a child’s best interest could turn on a single factor.

Tennessee Code Annotated § 36-6-106(a)(13) requires the trial court to consider the child’s preference:

The reasonable preference of the child if 12 years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children.

The Court concluded the trial court erred by failing to consider the testimony of the 13-year-old child:

In making its custody determination, the trial court was required to consider, among other factors, the reasonable preference is of the parties’ child[], inasmuch as [Child was] over the age of 12 years . . . . As this Court previously recognized, however, a child’s stated preference is not binding upon the trial court but is just one of the factors to be considered by the court in making its custody determination. . . . The trial court made many findings of fact favorable to Father as well as Mother. Given the fact-intensive nature of a best[-]interest analysis, it is simply impossible for this Court to know whether the exclusion of the Child’s preference affected the outcome of the case.

* * * * *

The trial court gave no reasoning for refusing to consider the Child’s preference other than its desire to keep the Child out of the middle of his parents’ litigation. While we certainly understand the trial court’s preference to keep the Child out of the middle of his parents’ dispute, the fact remains that the very nature of child[-]custody litigation puts the children squarely in the middle of the dispute. Furthermore, Father attempted to testify as to the Child’s preference and was thwarted at every turn by objections from Mother’s counsel. The Child’s preference was not allowed into evidence in any manner or method in this case. We must, therefore, adhere to the plain language of the statute at issue, which requires the trial court’s consideration of this Child’s preference, and conclude that the trial court erred in excluding proof of the Child’s preference.

In the previous appeal of this case, we bemoaned having to extend this seemingly never-ending custody battle . . . . We reiterate that sentiment now, nearly two years later. However, we are bound by our duty to interpret the law and enforce it as written. This matter is, therefore, remanded to the trial court.

K.O.’s Comment: This is the second appeal in this case. In the first, the trial court was reversed for sending the case to a special master without an order of reference. Now the same trial court gets a third opportunity to resolve this case without committing reversible error.

Roberts v. Roberts (Tennessee Court of Appeals, Western Section, November 22, 2017).

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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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