Change of Child Custody Reversed for Lack of Notice in Chattanooga, Tennessee: In re Ky’Auri M.

Facts: Mother and Father, the never-married parents of Child, have a parenting plan that designates Mother as the primary residential parent, requires joint decision-making, and establishes a parenting schedule that, among other things, requires the parents to equally split the summer and winter breaks.

Tennessee child custody trialFather filed a petition for contempt alleging that Mother was not engaging in joint decision-making and limited his summer parenting time to two weeks even though the parenting plan says it is to be split equally.

At the hearing, the trial court announced that “the issue before the Court was whether the mother was in contempt of this Court and, upon the Court’s own motion, if she should remain custodian of the child.”

The trial court found Mother in contempt, found her contempt to be a material change of circumstances, and found it to be in Child’s best interest to award custody and sole decision-making authority to Father.

Mother appealed.

On AppealThe Court of Appeals reversed the trial court.

While Tennessee Code Annotated § 36-6-101 authorizes courts to modify parenting plans, the statute contemplates that “the issue” must be “before the court” before the court may modify a prior order regarding custody.

A fundamental requirement of due process is notice reasonably calculated to apprise interested parties of the lawsuit and allow them to present their objections. One of the primary purposes of pleadings is to give notice of the issues to be tried so an opposing party can adequately prepare for trial.

In Keisling v. Keisling, the Tennessee Supreme Court faced whether the trial court erred in transferring child custody from one parent to the other when no petition requesting a change of custody had been filed at the time of the ruling. The Court held that due process requires, at a minimum, that a pleading be filed informing the parent that a change in custody is being contemplated by the court.

The lack of notice in Father’s pleading was fatal to the trial court’s ruling:

Here, the only issue “before the court” was Father’s petition for contempt, in which Father prayed:

  1. That said defendant(s) be cited to show cause for failure to comply with the orders of this Court.
  2. At that such further relief be granted to which petitioner may be entitled, which may include incarceration for said contempt.

There was no prayer for a modification to the permanent parenting plan or a change of the primary residential parent, and there were no allegations or proof of neglect, abuse, or unfitness of Mother. Nevertheless, Father argues on appeal that a change in custody was contemplated in his request for “such further relief” that Father may have been entitled to in his petition for contempt. We find this argument unpersuasive because basic due process required Father to have given notice reasonably calculated under all the circumstances, to apprise Mother of the pendency of the action, and afford her an opportunity to present her objections. The [trial court] raising the issue of custody sua sponte is not a pleading sufficient to afford Mother due process. . . .

Mother was never served with any pleading notifying her that Father may be designated as the primary residential parent, that Father may be awarded sole decision-making authority, or that the parenting schedule and permanent parenting plan may be modified. Consequently, we have determined that the magnitude of Mother’s constitutional right to rear and have custody of her child necessitates that notice satisfying the constitutional requirements of due process should have been given to her where a change in custody was at issue.

The trial court’s modifications to the parenting plan were reversed.

In re Ky’Auri M. (Tennessee Court of Appeals, Eastern Section, July 18, 2018).

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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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