Facts: Mother and Father are the never-married parents of Child. After the trial court established paternity, it approved their agreed parenting plan.
Three and a half years later, Mother withheld Child from Father’s court-ordered visitation and refused to communicate with him. Father moved to compel visitation.
One week later, Mother moved for a restraining order preventing Father from having any contact with Mother or Child because of disclosures of sexual abuse Child made in a forensic interview eight months earlier. Mother had also enrolled Child in counseling to cope with the alleged abuse.
The trial court found by a preponderance of the evidence that Father had touched Child inappropriately on more than one occasion. The trial court found it was in Child’s best interest for Father to have no contact with Child until further order. The trial court observed that visitation may resume upon the recommendation of Child’s therapists.
Father appealed. He argued the trial court erred in analyzing the case as a child-custody matter rather than as a dependency and neglect matter.
On Appeal: The Court of Appeals affirmed the trial court.
Title 36 of the Tennessee Code governs child-custody disputes, including the enforcement and modification of parenting plans.
For example, Tennessee Code Annotated § 36-6-502 authorizes a trial court to enforce visitation rights and sanction parties who fail to comply. Tennessee Code Annotated § 36-6-510 allows a parent to move to modify an existing custody or visitation order. Tennessee Code Annotated §§ 36-6-404 and -405 establish the process trial courts must follow in determining whether a modification is necessary.
The Court found this was properly considered a child-custody dispute because the parties sought to enforce and modify an existing parenting plan:
Pursuant to Tennessee Code Annotated § 36-6-406(a)(2), a trial court is justified in limiting a parent’s coparenting time under certain circumstances, such as when a child has been subjected to physical or sexual abuse by that parent. . . . Tennessee Code Annotated § 36-6-106 authorizes a trial court to fashion a custody arrangement that serves the best interest of a child. This section specifically empowers trial courts to consider factors including, but not limited to, the “moral, physical, mental and emotional fitness of each parent as it relates to their ability to parent the child,” as well as “[e]vidence of physical or emotional abuse to the child . . . .”
The above-referenced code sections are clearly applicable to and controlling of the issues in the case at bar. Though the parties were never married, they maintained a valid [parenting plan] concerning Child’s residential schedule with each parent.
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Because Father sought enforcement of his visitation rights, the trial court’s application of custody law in resolving his motion was proper.
Similarly, in her counter-motion , Mother sought relief tantamount to a request for modification of the residential coparenting schedule. . . . Despite having withheld Child from Father absent a court order, Mother requested that the trial court restrain and prohibit Father from further contact with Child in order to protect Child from further abuse. . . . Statutory authority governing child custody arrangements specifically provides that a trial court may restrict parental visitation, as was requested by Mother, in cases where the court finds reliable evidence of child sexual abuse.
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[T]he gravamen of the action concerned whether the parties’ prior, valid [parenting plan] should be enforced as written or modified due to the allegations that Father had abused Child. . . . [W]e discern no error in the trial court’s application of child custody law, pursuant to Tennessee Code Annotated Title 36, in its adjudication of this case.
The trial court’s judgment was affirmed.
K.O.’s Comment: This case well illustrates the confusion that exists for lawyers and judges when presented with claims of abuse.
It is such a case a child-custody matter governed by Title 36 that must be proven by a preponderance of the evidence?
Or is it a dependency and neglect matter under Title 37 that must be proven by the higher standard of clear and convincing evidence?
Ask 100 family-law attorneys and judges and you will find the answer is unclear, to put it mildly.
As I commented on the Tennessee Supreme Court’s opinion in Cox v. Lucas, the Supreme Court could have provided clarity, but the statutory change pretermitted the hoped-for substantive analysis.
If the father seeks permission to appeal, I urge the Supreme Court to grant the application and clarify when an allegation sounds in dependency and neglect and when it does not.
If the standard is whether one seeks to modify an existing custody or visitation order, as occurred here, then the volume of dependency and neglect cases will be sharply reduced.
If it’s a question of how it’s pleaded, then every petitioning attorney will plead it as a child-custody matter to take advantage of the lower burden of proof.
As things stand, we are left with the we’ll-know-it-when-we-see-it standard, which is about as unhelpful as it gets.