Jurisdiction to Modify Parenting Plan Challenged in Selmer, Tennessee: Hernandez v. Hernandez

FactsMother and Father married in 2005, had one daughter, and divorced in 2006.

Mother was designated the primary residential parent, and Father received parenting time every weekend.

Eight years later, Father moved to North Carolina.

The following year, in 2015, Mother moved to Alabama after being investigated for sexual contact with a minor.

UCCJEA

In 2016, Father petitioned the Tennessee court to modify the parenting plan to designate him the primary residential parent and limit Mother to supervised visitation.

Mother moved to dismiss Father’s petition because the trial court lacked subject-matter jurisdiction.

The trial court entered an interim order requiring that Mother’s parenting time be supervised, and increasing Father’s parenting time on some holidays.

Mother later pleaded guilty to aggravated statutory rape and became a registered sex offender.

After two days of trial, the trial court concluded because it lacked subject-matter jurisdiction, the case must be dismissed, explaining:

Neither the parents nor child currently reside in Tennessee. Tennessee is no longer the home state of the minor child. . . . Alabama and not Tennessee appears to have such jurisdiction.

Father appealed.

On AppealThe Court of Appeals affirmed the trial court.

Subject-matter jurisdiction involves a court’s power to adjudicate a particular case. To enter a valid, enforceable order, a court must have subject-matter jurisdiction.

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) governs jurisdictional custody issues that involve multiple states. The purpose of enacting the UCCJEA was to

  • establish national standards for jurisdiction regarding initial custody determinations,
  • specify the circumstances under which a state can modify another state’s child-custody determination,
  • establish procedures to enforce both initial custody orders and modification orders, and
  • prevent contradictory orders by the courts of different states.

A Tennessee court has subject-matter jurisdiction to make an initial child-custody determination if the child lived with a parent in Tennessee for at least six months before the child-custody case began.

Tennessee courts retain exclusive, continuing jurisdiction until

  • neither the child nor either parent resides in the state and substantial evidence regarding the child’s situation is no longer available in Tennessee, or
  • another state determines that neither the child nor either parent resides in Tennessee.

The Court agreed it was proper to dismiss that the case:

The evidence does not preponderate against the trial court’s finding that Tennessee was no longer the home state of either parent or of the child at the commencement of this action because Father, Mother, and the child had all resided outside the state for at least six months prior to the filing of the modification petition. Therefore, the trial court properly found that it had lost exclusive, continuing jurisdiction over this matter.

Tennessee’s version of the UCCJEA allows a Tennessee court to exercise “temporary emergency jurisdiction” if the child is present in Tennessee and has been abandoned or is subjected to or threatened with mistreatment or abuse.

The Court rejected Father’s argument that the trial court properly exercised temporary emergency jurisdiction when entering its interim order:

The trial court did not at any point in the order invoke temporary emergency jurisdiction under the UCCJEA and did not reference the statute at all. Moreover, the trial court did not have the authority to invoke temporary emergency jurisdiction concerning the child because the child was not present in Tennessee and had not been present in Tennessee for several months.

Besides affirming the trial court’s dismissal, the Court held that the interim order limiting Mother to supervised visitation was void for lack of subject-matter jurisdiction. The initial parenting plan remains in effect until a court with jurisdiction—presumably an Alabama court—modifies it.

Hernandez v. Hernandez (Tennessee Court of Appeals, Western Section, July 30, 2019).

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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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