Facts: Father and Mother were the married parents of two children.

After Father filed for divorce, the children were the subject of a dependency and neglect action filed in juvenile court by the Maternal Grandparents. Because of the parents’ drug addiction and Father’s incarceration, custody was awarded to Maternal Grandparents via a “temporary custody order.”

When Father and Mother divorced, the trial court noted that juvenile court has exclusive jurisdiction over the children because of the dependency and neglect case.

Two years later, after Father was released to probation, pro se Father petitioned for custody in the divorce court, alleging that “he is completely stable, personally, financially, and otherwise” and has “done everything humanly possible to correct his past sins.”

The juvenile court dismissed the dependency and neglect matter, and jurisdiction over the children returned to the divorce court.

The trial court heard the proof, made findings per the statutory best-interest factors, and concluded it is in the children’s best interest to remain in the custody of Maternal Grandparents. Father was awarded only 54 days of parenting time.

Father appealed.

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

A child’s biological parent enjoys constitutionally protected interests not shared by third parties. Thus, Tennessee law favors the biological parent when there are competing custody claims between a biological parent and a third party.

In an initial custody dispute between a parent and a third party/nonparent, the nonparent must prove by clear and convincing evidence that the child will be exposed to substantial harm if placed in the custody of the parent. If that burden of proof is satisfied, only then may the court assess the child’s best interest in deciding custody.

A different analysis applies when a parent seeks to modify an existing order that vests custody with a nonparent. In such a situation, courts apply the standard typically applied in parent-vs-parent modification cases, i.e., whether a material change in circumstances has occurred that makes a change in custody in the child’s best interest.

There are four “extraordinary circumstances” where parents continue to hold a presumption of superior parental rights against the nonparent:

1. when no order exists that transfers custody from the natural parent;
2. when the order transferring custody from the natural parent is accomplished by fraud or without notice to the parent;
3. when the order transferring custody from the natural parent is invalid on its face; and
4. when the natural parent cedes only temporary and informal custody to the nonparent.

When any of these factors apply, the parent retains the presumption of superior parental rights against claims of custody by nonparents.

The Court found the trial court applied an incorrect legal standard because it did not recognize Father’s superior parental rights:

In this case, the order providing custody to Maternal Grandparents was “temporary” in nature, and therefore the fourth “extraordinary circumstance” [] is implicated.

The initial order entered by the juvenile court [] was entitled “Temporary Custody Order” and explicitly stated, “The order is temporary in nature.” In every subsequent order, in either the juvenile or Chancery Court, the children’s custody arrangement was characterized as “temporary.” … Accordingly, in the case before us, Maternal Grandparents were provided with only temporary custody of the children, and Father was entitled to the presumption of superior parental rights when seeking to regain custody or modify the temporary order. Therefore, Maternal Grandparents bore the burden of showing, by clear and convincing evidence, that the children would be exposed to substantial harm if they were placed in the custody of Father.

*     *     *     *

Although our courts have acknowledged it is difficult to set out a precise definition of “substantial harm,” we have determined: (1) there must be a real hazard or danger to the child that is not minor, trivial, or insignificant, and (2) the harm must be more than a theoretical possibility … it must be sufficiently probable to prompt a reasonable person to believe that the harm will occur more likely than not.

In order to determine whether a parent poses a risk of substantial harm, courts may inquire into a person’s fitness as a parent. Naturally, as a part of their efforts to assess the parties’ present parental fitness, courts may consider past conduct and events. With that said, custody decisions should not be used to punish parents for past misconduct or to award parents for exemplary behavior. The courts recognize that parents are able to turn their lives around, and custody decisions should focus on the parties’ present and anticipated circumstances. In this vein, courts may and should consider past conduct to the extent that it assists in determining a person’s current parenting skills or in predicting whether a person will be capable of having custody of the child. Importantly, consideration of past conduct must be tempered by the realization that the persons competing for custody, like other human beings, have their own virtues and vices. Among other things, courts must consider the nature and severity of the past conduct in relation to the welfare of the child, when the conduct occurred, and what remedial actions, if any, the parent has taken. Biological parents are not required to prove that they are perfect in order to be granted custody.

Because the trial court applied an incorrect legal standard to resolve the custody dispute between the parties, the Court reversed the trial court’s judgment and remanded the case to the trial court for further proceedings.

Jones v. Jones (Tennessee Court of Appeals, Middle Section, August 23, 2022).

If you found this helpful, please share it using the buttons below.