Facts: When Mother and Father divorced, they agreed to equal parenting time and joint decision-making authority.

Five years later, Father moved to Georgia.

Each parent petitioned to modify the parenting plan to designate themselves as the primary residential parent and establishing parenting time for the other parent.

The parties entered an agreed order forbidding them from discussing the litigation or the issues being litigated with Child.

At an interim hearing involving a dispute over Child’s education, Father tried unsuccessfully to compel Mother to bring Child to the hearing. The trial court explained that if it desired to hear from Child, it would do so in chambers in the presence of the attorneys but not the parents. The trial court reiterated that the parents were not to discuss with Child “where she wanted to live or ask her which parent she wanted to live with.”

Shortly thereafter, Father brought Child to his attorney’s office to discuss the child’s preference. At Father’s request, his attorney drafted an affidavit that Child signed. Unbeknownst to Mother, Father filed the affidavit with the clerk. Styled as Child’s “election,” the affidavit lacked both the signature of an attorney and a certificate of service.

Mother filed a petition for criminal contempt alleging that Father’s meeting with Child in his attorney’s office violated the prohibition on talking to Child about the litigation.

Before the hearing on the competing petitions to modify the parenting plan, Father moved for the trial court to hear Child’s testimony.

The trial court acknowledged it had to consider Child’s preference because of her age but denied Father’s motion because both parents agreed Child would testify that her preference was to live with Father. Under those circumstances, the trial court found “there’s no point in her coming to court because we already know what she is going to say.” The trial court also precluded Father from calling Child as a fact witness because he had not disclosed the substance of Child’s anticipated testimony as requested in an interrogatory.

Ultimately, the parties agreed that Mother would be the primary residential parent.

Father was found in criminal contempt for violating the agreed order prohibiting discussion of the litigation with Child. Father was sentenced to 10 days in jail, with nine days suspended for one year conditioned upon compliance with the trial court’s orders.

Father appealed, arguing that the trial court erred in excluding Child’s testimony.

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

Tennessee Code Annotated § 36-6-106(a)(13) requires courts to consider the “reasonable preference of the child if 12 years of age or older” when determining a child’s best interest.

Generally, a child’s preference must be established through proof.

But does the decision to exclude the child’s testimony violate the statutory mandate?

The Court says it does not:

Here, contrary to Father’s assertion, the court did consider the child’s preference. In its oral ruling excluding the child’s testimony, which was incorporated by reference in its order, the court stated that Mother would “agree that the child wants to live with the father.”

The Court found no error in the trial court’s refusal to hear Child’s testimony.

K.O.’s Comment: Forcing a child to testify in a parental dispute can be traumatic for the child. A child’s testimony should be avoided whenever possible, and I’m all for a trial court having the flexibility to refuse to hear the child’s testimony when there is no compelling reason for it to do so.

But an essential part of hearing a child’s preference is hearing the child’s reasons for their preference. Simply knowing that a child wants to live with one parent over the other without understanding the reasons why seems to render the statutory mandate meaningless.

Luttrell v. Wassenberg (Tennessee Court of Appeals, Western Section, July 9, 2020).