Facts: When Mother and Father divorced, their agreed parenting plan designated Mother as the primary residential parent of their two children and set out Father’s parenting time. Here, the bulk of factors favored neither party. Of the factors that weigh in favor of a particular party, however, the majority favor Father. In particular, the evidence concerning Father’s stability, his support network in New Jersey, and Mother’s decision to place her drug addiction before the mental and physical well-being of the children for even a period of few years, strongly support naming Father primary residential parent. Indeed, only a single factor strongly favors Mother, the fact that she has been the children’s primary caregiver since the divorce. . . . [T]his factor is not sufficient to militate in favor of keeping Mother as primary residential parent. The trial court’s judgment was affirmed.
Two years later, Father notified Mother that he was moving to New Jersey. Because of Father’s move to New Jersey, Mother petitioned to modify the parenting plan.
Father counter-petitioned to modify the parenting plan. He alleged that Mother had been charged with two felonies: possession of a controlled substance with intent to deliver and forgery. He alleged that Mother’s drug use resulted in the children being malnourished, truant from school, and unsafe in Mother’s care.
When the trial began, the trial court orally dismissed Mother’s petition because she had not filed a proposed parenting plan as required by Tennessee Code Annotated § 36-6-405.
Mother admitted developing a prescription drug addiction. She voluntarily completed an intensive outpatient rehabilitation program and complied with her treatment, including passing all drug screens. She testified she maintained her sobriety for over 18 months by the time of trial.
The trial court noted that, given Father’s move to New Jersey and Mother’s criminal charges, there was a material change in circumstances. The trial court concluded it was in the children’s best interest that Father be named the primary residential parent. Mother was awarded 110 days of parenting time.
Mother appealed.
On Appeal: The Court of Appeals affirmed the trial court.
Determining a child’s best interest is a fact-sensitive inquiry that does not call for a rote examination of each of the statutory factors and then a determination of whether the sum of the factors tips for or against the parent. The relevancy and weight to be given each factor depends on the unique facts of each case. Determining what is in the child’s best interest could turn on a single factor.
After examining the record, the Court found the evidence supported the trial court’s conclusion:
K.O.’s Comment: I hope you read this far because I blogged about this opinion solely to solicit your thoughts on the questions raised in these two comments.
(1) Father alleged that, because of Mother’s drug use, the children were malnourished, truant from school, and unsafe in her care. Doesn’t this allege dependence and neglect? Per the ruling in Cox v. Lucas, did the divorce court have subject-matter jurisdiction, or did exclusive jurisdiction lie with the juvenile court? If the latter, then isn’t the trial court’s ruling void?
(2) Note that Mother’s petition was dismissed by the trial court for failure to file a proposed parenting plan per Tennessee Code Annotated § 36-6-405. Considering the holding in Freeman v. Freeman, was this appropriate?
Haak v. Haak (Tennessee Court of Appeals, Western Section, December 17, 2018).
Children's Best Interest Favors Change of Custody in Savannah, Tennessee: Haak v. Haak was last modified: January 16th, 2019 by
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I agree with you on both counts. Mother should petition the Supreme Court to hear these issues
You’ve raised two interesting questions regarding contradictory rulings from two different lower courts. After reading the facts of the Haark case, it does sound like a dependency and neglect case. I will say that the fact that father waited to file his counter-petition until after he notified mother of his proposed moved and after she filed a petition to modify, raises questions in my mind. If mother was using and selling drugs, malnourishing her children and charged with two felonies why did he wait to file? Apparently her drug use began while the parties were still married.
Nonetheless, one of the factors in the custody statute deals with physical or emotional abuse of the child, therefore, the legislature contemplated that there may be cases where a child is physically abused, but there is no dependency and neglect action pending. As a practitioner, I prefer being able to make the call (and for my clients to make the call) as to whether or not a child needs to be thrust into the juvenile court system in a dependency and neglect case, which can potentially follow the child around until he or she is 18, or whether the matter is better handled in Circuit or Chancery Court between the two parents.
In my opinion, a custody case in Circuit or Chancery should not be dismissed for lack of subject matter jurisdiction just because it “sounds” in dependency and neglect but is not, in fact, a case brought under the dependency and neglect statute. There are benefits to filing a dependency and neglect case in Juvenile Court, such as the ability to get an ex parte protective custody order, but each party should be able to decide which route to take. Just because there is physical abuse, does not mean that a party HAS to file a dependency and neglect proceeding, does it? I’m not aware of any requirement to that effect. In practicality, there are probably hundreds (at least) of custody cases filed every year that could be litigated as a dependency and neglect case or a custody case.
Regarding the dismissal of mother’s petition in Haark, the statute requires a parenting plan to be filed with the petition, unless it’s only a petition for child support. The word “shall” is used in the statute. I was somewhat surprised that the court didn’t allow her to at least go forward on the child support portion of her petition, However, the statute says that a proposed plan shall be filed with the petition, but is not required if it pertains ONLY to child support. It looks like the Haark court was following the statute as written.
1. It would have been D/N were it timely filed (during the drug issue). It was not. The D/N (drug issue) had passed pursuant Greene 18 months ago. So, it’s an easy argument that D/N was actually not a factor here, but those fact were still relevant for Best Interest.
2. No, that should not have been fatal.