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.

After a trial, the divorce court entered an emergency order changing custody to Father.

Two years later, Mother moved to dismiss Father’s petition and all resulting orders lacking 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.

The Court of Appeals found Father’s petition to allege dependency and neglect. Because exclusive jurisdiction over dependency and neglect matters lies with the juvenile court, it found the divorce court lacked subject-matter jurisdiction and, therefore, its order changing custody was void.

The Tennessee Supreme Court agreed to hear the appeal.

While the appeal was pending, the Tennessee Legislature amended the statute that vests continuing jurisdiction over the children with the divorce court to clarify that the divorce court retains subject-matter jurisdiction “regardless of the nature of the allegations, unless and until a pleading is filed or relief is otherwise sought in a juvenile court invoking its exclusive original jurisdiction.” The legislation expressly applies “to any case pending or filed on or after” the effective date of April 18, 2019.

On Appeal: The Tennessee Supreme Court reversed the Court of Appeals and reinstated the divorce court’s order changing custody.

Tennessee divorce courts have subject-matter jurisdiction to grant divorces and make child-custody determinations in divorce proceedings. Those determinations remain within the control of the divorce court and remain subject to modification as the facts may require.

The Supreme Court concluded the April 18 statutory amendment controlled the outcome of the appeal:

[W]e conclude that under the plain language of the amendment, the [divorce court] was not precluded from exercising domestic-relations jurisdiction . . . regardless of the nature of the allegations of Father’s petition because no pleading had been filed or relief otherwise sought in a juvenile court invoking its exclusive original jurisdiction. Accordingly, the allegations of Father’s petition did not divest the [divorce court] of subject-matter jurisdiction. To the contrary, [divorce] courts possess continuing, exclusive subject-matter jurisdiction of divorce decrees. . . . Thus, Father appropriately filed his petition seeking modification of the [parenting plan] in the [divorce court]. Mother, therefore, is not entitled to relief from the [divorce court’s] judgment entering the modified [parenting plan] or from any of the [divorce court’s] other orders adjudicating Father’s petition.

Because of the new legislation, the Court of Appeals was reversed, and the custody change ordered by the divorce court was reinstated.

K.O.’s Comment: I was hopeful the Supreme Court would use this case as a vehicle for clarifying how to determine when allegations sound in dependency and neglect as opposed to garden-variety complaints about the other parent’s decision-making and behavior. Because of the new legislation, the Supreme Court didn’t get that opportunity. That’s regrettable. I encourage my colleagues to look for the right case that will give the Supreme Court that opportunity.

Cox v. Lucas (Tennessee Supreme Court, May 29, 2019).