Facts: Mr. Brooks, a Tennessee resident, had a relationship with Mother, a California resident, that resulted in the birth of a child out of wedlock.

A prenatal paternity test showed a 99.9% probability that Mr. Brooks was the biological father.

Mother and the child made trips to Tennessee to spend time with Mr. Brooks. However, the relationship deteriorated after they had a heated argument over the child.

In December, Mr. Brooks filed a complaint for emergency custody and injunctive relief in Memphis. He alleged that Mother and the child had resided in Memphis since July. He asked the Tennessee court to exercise emergency jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) based on Mother’s “bizarre and reckless behavior” and award him temporary emergency custody of the child.

Mr. Brooks was not listed on the child’s birth certificate and did not establish parentage. Still, he alleged that the prenatal paternity test conclusively proved his paternity.

Despite Mr. Brooks’ inability to locate and serve process on Mother, the trial court issued a temporary injunction placing the child in Mr. Brooks’ custody and directing Mother to return the child to Memphis.

In January, Mother’s counsel entered a limited appearance seeking to dismiss Mr. Brooks’s complaint for, among other things, lack of subject-matter jurisdiction, arguing that Mr. Brooks had not established parentage and the child resided in California. Mother also filed a parentage action in California.

The trial court denied Mother’s motion to dismiss finding that Mr. Brooks’ parentage is “presumed” from the DNA test and its conclusion that the child was present in Tennessee when Mr. Brooks filed his complaint.

Mother requested, and the Court of Appeals granted, an interlocutory appeal on whether Mr. Brooks has standing to file his complaint.

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

Parentage. Absent an order to the contrary, custody of a child born out of wedlock is with the mother. One of the five ways a man can create a rebuttable presumption that he’s the father is if genetic tests administered per Tennessee Code Annotated § 24-7-112 show at least a 95% probability of paternity. Otherwise, a complaint to establish parentage must be filed. Once parentage is established, the court can address custody, visitation, and child support.

The Court found the trial court erred in issuing its initial orders because parentage was never established:

Mr. Brooks admits that he has not obtained an order of parentage or signed a voluntary acknowledgment of paternity in order to obtain standing to sue for custody, but he nevertheless argues that the DNA test should give him standing to sue for custody exactly like a voluntary acknowledgment of paternity…. We disagree. Being a child’s biological father is not sufficient, by itself, to qualify a man as a child’s legal parent. Once the biological father has established his paternity, his constitutionally protected fundamental right to parent his child vests and he is the legal father. … One does not legally establish his paternity simply by obtaining a DNA test. [O]ne can become a legal parent in statutorily defined circumstances, including when paternity is adjudicated by a court or established through a voluntary acknowledgment of paternity.

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[W]hen Mr. Brooks filed this lawsuit, he had not obtained (nor did he seek) an order of parentage, he had not signed a voluntary acknowledgment of paternity, and he did not meet any of the definitions of a legal parent. Mr. Brooks had not yet established any legal relationship with the child. Thus, we conclude that the trial judge erred in entering its initial restraining orders….

Emergency Jurisdiction. Tennessee’s version of the UCCJEA, Tennessee Code Annotated § 36-6-219, allows a Tennessee court to exercise temporary emergency jurisdiction in certain circumstances “if the child is present in this state.”

The Court also faulted the trial court for exercising emergency jurisdiction after finding that Mother and the child were present in Tennessee when the complaint was filed:

First, the chancellor stated that he questioned Mother’s credibility and discounted her affidavits….

Even if we were to discount Mother’s proof entirely, Mr. Brooks did not establish that the child was present in [] Tennessee when the complaint was filed [] (or has been since)…. Here, the burden was on Mr. Brooks…. Mr. Brooks did not explain the basis for this conclusory belief and later conceded he “had no way of knowing with certainty that the minor child was still present in Tennessee at the time of filing” because Mother was already actively concealing the child’s location.

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Because the child in this case was not shown to be present in Tennessee, the Chancery Court did not have the authority to invoke temporary emergency jurisdiction over her.

The Court reversed the trial court’s orders and remanded the case to the trial court to address the remaining issues relating to the amended complaint Mr. Brooks filed after Mother’s interlocutory appeal was granted.

Brooks v. Andrews (Tennessee Court of Appeals, Western Section, December 27, 2021).

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