Facts: When Mother and Father divorced, Father received parenting time with their children and was ordered to pay child support.
Mother married Stepfather. Mother was later diagnosed with terminal cancer. Mother and Stepfather petitioned to terminate Father’s parental rights so Stepfather could adopt the children.
The trial court denied the termination petition but found it was in the children’s best interests for Stepfather to receive permanent guardianship and physical custody of them:

Termination of [Father’s] parental rights is not in their best interest, as it would sever lasting bonds that they have with their father — who may soon be their only surviving biological parent. However, in keeping with [Mother’s] wishes, the Court alternatively believes that it has the jurisdiction and the ability to order that permanent guardianship be set up between [Stepfather] and [the Children] such that [Stepfather can remain involved in their care and custody should [Mother] not recover from her present illness.

Mother died two weeks later.
Father appealed.
On Appeal: The Court of Appeals reversed the trial court.
Father argued the trial court lacked the authority to enter an order of guardianship after denying the termination petition.
Chancery and circuit courts have concurrent jurisdiction with juvenile courts to consider a petition to terminate parental rights. The court considering a petition to terminate parental rights also possesses the authority to enter an order of guardianship under Tennessee Code Annotated § 36-1-113(m), which provides:

Upon termination of parental or guardian rights, the court may award guardianship or partial guardianship to any prospective adoptive parent or parents with the right to adopt the child . . . .

There is no provision allowing the court to designate a permanent guardian if the termination petition is denied.
Only juvenile courts have the authority to appoint a permanent guardian if the termination petition is denied, and juvenile courts can only do so when:

• the child has been adjudicated dependent and neglected, unruly, or delinquent;
• the child has lived with the proposed permanent guardian for at least six months;
• the permanent guardianship is in the child’s best interest;
• reunification of the parent and child is not in the child’s best interest; and
• the proposed permanent guardian is fit, able to provide a safe home, and is committed to remain the permanent guardian until the child becomes an adult.

The Court concluded that a guardianship was inappropriate:

Even if the court in this case had the authority to designate Stepfather as the permanent guardian, it did not issue the requisite findings in support of its order of guardianship.

The guardianship was vacated and the case remanded back to the trial court.
K.O.’s Comment: Judge McClarty erroneously cites Tennessee Code Annotated § 36-6-106(a) for the proposition that, on remand, the trial court can award custody to Stepfather. The correct citation is to § 36-6-101(a)(1), which says:

In a suit for annulment, divorce or separate maintenance, where the custody of a minor child or minor children is a question, the court may . . . award the care, custody and control of such child or children to either of the parties to the suit or to both parties in the instance of joint custody or shared parenting, or to some suitable person, as the welfare and interest of the child or children may demand . . . .

This should not be interpreted to suggest that Father and Stepfather are on equal footing. They are not. Father is a legal parent, while Stepfather is not. Father has superior parental rights that can only be overcome if Stepfather proves by clear and convincing evidence that the children will be exposed to substantial harm if they are placed in Father’s custody. This will likely be an insurmountable burden for Stepfather given the trial court’s previous findings regarding the children’s loving relationship with Father.
For good discussions of the law that governs cases between parents and third parties, see Mook, Vinson, and Bryan.
In re Kira D. (Tennessee Court of Appeals, Eastern Section, June 26, 2018).