Facts: Mother and Father are the parents of Child.

When Child was one year old, and Father was in prison, the maternal grandmother and stepgrandfather received custody of Child.

Six years later, Father was released from prison. He petitioned to reestablish visitation with Child and then receive custody. Mother and Grandparents were agreeable to Father having visitation but argued it was not in Child’s best interest to change custody.

The trial court ruled that Father retains his superior parental rights, restored custody to Father, and ordered a temporary, transitional parenting schedule where Father and Grandparents would share physical custody for 3 ½ months.

At the final hearing, full custody of Child was restored to Father. Grandparents were awarded visitation one weekend each month plus one week-long visit each year.

Grandparents appealed.

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

In a child-custody contest between a parent and a nonparent, a parent cannot be deprived of custody unless the nonparent proves by clear and convincing evidence that the child will be exposed to substantial harm if placed in the custody of the parent. Only then can a Tennessee court engage in the best-interest analysis to determine custody.

A parent’s voluntary transfer of custody to a nonparent operates as a waiver of the parent’s superior parental rights. Tennessee law provides four circumstances where a parent retains a presumption of superior parental rights:

• when no order exists that transfers custody from the parent;
• when the order transferring custody from the parent is accomplished by fraud or without notice to the parent;
• when the order transferring custody from the parent is invalid; and
• when the parent cedes only temporary and informal custody to the nonparents.

Here, the trial court found, and the Court of Appeals affirmed, that Father retained his superior parental rights because he did not receive notice of the custody proceeding that awarded custody of Child to Grandparents when Father was in prison.

Because of the variability of human conduct, the circumstances that pose a risk of substantial harm to a child are not capable of precise definition. The use of the modifier “substantial” suggests two things:

• it connotes a real hazard or danger that is not minor, trivial, or insignificant; and
• it indicates that the harm must be more than a theoretical possibility. While the harm need not be inevitable, it must be sufficiently probable to prompt a reasonable person to believe that the harm will likely occur.

To determine whether a parent poses a risk of substantial harm, Tennessee courts may inquire into a person’s fitness as a parent.

After examining the facts supporting Grandparents’ arguments for a finding of substantial harm, the Court, like the trial court, found them unavailing:

[T]he record does not provide clear and convincing evidence that [Child] would be exposed to substantial harm in Father’s custody. Perfection in parenting is not the standard. The concerns expressed by Grandparents [] were addressed by the court in the provisions included in the order relating to the comings and goings of relatives into the home, [Child’s] ability to play age-appropriate video games, the use of foul language, smoking, gun safety, and [Child’s] school attendance.

The trial court’s custody order was affirmed.

In re Christian S. (Tennessee Court of Appeals, Middle Section, October 24, 2018).