Facts: When Mother and Father divorced, Mother was designated the primary residential parent for their child.

Ten years later, Father petitioned the divorce court to change custody. Father’s allegations included:

• Mother’s living conditions are unhealthy and unsafe;
• Mother smokes pot around the child;
• the child is often left alone at night, with Mother returning in the early morning hours; and
• the child complains of having little or no food in the home. Mother sends the child to neighbors to ask for food.

The trial court entered an emergency order changing custody to Father. After a trial, the parenting plan was modified to name Father as the primary residential parent.

Two years later, Mother moved to dismiss Father’s petition and all orders resulting therefrom for lack of subject-matter jurisdiction. Mother argued the petition alleged dependency and neglect, thereby implicating the exclusive original jurisdiction of the juvenile court.

The trial court denied Mother’s motion.

Mother appealed.

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

Tennessee courts must have jurisdiction over the subject matter of the case as well as over the parties. The question of subject-matter jurisdiction relates to a court’s power to adjudicate a particular type of case. A court cannot enter a valid, enforceable order without subject-matter jurisdiction. The lack of subject-matter jurisdiction may be raised at any time.

In Tennessee, both circuit and chancery courts may grant divorces and make child-custody determinations in divorce proceedings.

Likewise, juvenile courts have exclusive original jurisdiction over cases where a child is alleged to be dependent and neglected.

The divorce court never loses jurisdiction of the question of custody as part of the divorce, but the right and power to exercise jurisdiction over the child may be superseded by a juvenile court exercising the exclusive jurisdiction conferred on it to determine whether the child is dependent and neglected.

A child is “dependent and neglected” when the parent is unfit to properly care for the child, the child is under improper care or supervision, or the child is suffering from abuse or neglect.

The Court of Appeals found Father’s petition to allege dependence and neglect; thus, only the juvenile court had the authority to address them:

In the case at bar, Father’s petition alleged that Mother’s drug use occurred in the presence of the child. Moreover, the petition alleged that the child had access to both marijuana and Mother’s pipe. We think these allegations fit within [the definition of dependency and neglect].

Assertions that there is “little or no food in the home” and that the child returns to Father without clean clothes or even proper undergarments raise serious questions about the child’s health and hygiene. We think these allegations fit within [the definition of dependency and neglect].

Finally, Father’s petition alleged that Mother “allows [the] child to stay home ‘sick’ and then takes [the] child with her on trips to do odd jobs.” The petition also alleged that Mother has instructed the child to lie to school officials about her tardiness or absences. Parents have a legal obligation to cause their child to attend public or nonpublic school. A parent who fails to do so commits educational neglect, which is a Class C misdemeanor. Because Father’s petition alleged that Mother permits the child to skip school without justification and encourages the child to lie about doing so, the petition alleged [dependency and neglect].

In light of the foregoing analysis, we conclude that Father’s petition contained assertions that were tantamount to allegations of dependency and neglect. Accordingly, the trial court lacked subject-matter jurisdiction and all actions taken by the [trial] court are void for lack of subject-matter jurisdiction.

The trial court order changing custody was reversed.

K.O.’s Comment: (1) Mother has two children from different fathers. Both fathers filed similar actions to change custody based on identical allegations, and both prevailed in the trial court. Mother appealed both cases and obtained the same result for the same reason. The companion case is Minyard v. Lucas.

(2) To see how the same issue was addressed in a different case, read Holley v. Holley.

Cox v. Lucas (Tennessee Court of Appeals, Eastern Section, November 2, 2018).