Facts: Mother and Father are the unmarried parents of Child. Shortly after Child’s birth, Father took legal action to establish his parentage. In January 2021, the Juvenile Court entered an agreed order confirming Father’s paternity. That order stated that “any and all issues related to custody, visitation, and child support” were reserved for later determination by the trial court.

Mother married Stepfather, and Child has always lived with Mother and Stepfather. Father has never been allowed to meet Child. Despite this, Father remained active in court seeking to establish a relationship with Child, filing motions for visitation and custody.

Meanwhile, Father never paid any child support for Child. It is undisputed that he had the ability to pay. Father, through his attorney, offered to pay child support to Mother, but Mother declined to accept any payments. Instead, Father set up a savings account for Child and made regular deposits into it.

In March 2022, Mother and Stepfather petitioned to terminate Father’s parental rights. They alleged that Father abandoned Child by willfully failing to pay child support during the four months preceding the filing of their petition. The trial court agreed and found Father was able to pay support but willfully failed to do so. Father’s parental rights were terminated.

Father appealed, arguing that he did not willfully avoid supporting Child because he relied on the Juvenile Court’s order reserving all child support issues for later.

On Appeal: In a 2-1 decision, the Court of Appeals reversed the trial court’s decision, concluding that Father’s failure to pay support was not willful.

Tennessee law provides that a parent’s rights can be terminated if the parent abandons their child. One form of abandonment is failure to support: the parent fails to pay child support at all or only makes token payments for four consecutive months before the termination petition is filed.

Every parent is presumed to know they have a legal obligation to support their child, even if no court order has set an amount. However, Tennessee law also provides a parent with an affirmative defense to abandonment by failure to support: if the parent proves, by a preponderance of the evidence, that the failure to support was not willful, then the court cannot terminate on that ground. In other words, if a parent shows a justifiable excuse for not paying support despite having the ability to pay, the law will not consider it “willful” non-support. The burden was on Father to prove his lack of willfulness.

In a 2-1 decision, the majority of the Court of Appeals held that Father had established his failure to support was not willful; thus, the statutory ground of abandonment by failure to support was not proven by the clear and convincing evidence required for termination. They emphasized that Father’s unusual situation, involving a court order explicitly postponing any child support obligations, created a reasonable excuse for his nonpayment. The Court noted critical differences between a parent who simply has no court order and a parent who was told by a court that support issues would be handled later. The majority found that Father reasonably interpreted the Juvenile Court’s order to mean he should await a formal support determination. The Court explained its reasoning:

The Juvenile Court reserved “any and all issues related to Custody, visitation, and child support. . . .” A reasonable litigant reading the Juvenile Court’s order could interpret it to mean just what it said — any and all issues including child support were reserved. We see no other legitimate way to interpret this language. That is, these issues were postponed, put off, and left for future resolution.

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It was not unreasonable for Father to rely upon the court’s order. In view of the specific circumstances of this case, we find that Father has met his burden of proving by a preponderance of the evidence that his failure to pay child support in the relevant four-month period was not willful. The ground of abandonment by failure to support was not proven against Father by the requisite clear and convincing evidence. We reverse the sole ground for termination found against Father.

Dissenting Opinion: Judge Frierson disagreed on the willfulness issue, concluding that Father’s failure to support was willful under Tennessee law. In his view, the Juvenile Court’s “reserve” order did not excuse Father’s complete lack of support. Judge Frierson stressed that Tennessee courts have consistently held that a parent must support their child even without a payment order. He saw “no meaningful difference” between having no order and having an order that delays setting support. In fact, he thought Father’s situation made the failure more egregious because Father was clearly on notice that support would eventually be required:

Our Supreme Court and this Court have clearly articulated that a parent is liable for the support of his or her child throughout minority, with or without the existence of a court order.

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I can discern no dissimilarity between a parent for whom there is no court order directing the payment of support [] and a parent who has a court order that reserves the issue of support for future adjudication. In fact, the latter situation appears to demonstrate a greater degree of willfulness.

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Father could not justifiably rely on the lack of a court order setting support as an excuse for his failure to pay. I would therefore affirm the trial court’s determination that clear and convincing evidence supports the ground of abandonment by failure to support.

In a split decision, the Majority reversed the trial court’s termination of Father’s parental rights.

K.O.’s Comment: This case highlights a crucial point for parents and lawyers in termination cases: Don’t assume that the absence of a formal child-support order means you can pay nothing. Tennessee law presumes every parent knows they must support their child, and over the years, our courts have repeatedly terminated parental rights for nonsupport even when no support order existed.

With that said, Pretend Judge Herston would have made the majority opinion a unanimous opinion. Here, Mother refused to accept support from Father. Father established a separate account for the child and funded it for Child’s benefit. In my opinion, those facts establish the lack of willfulness.

If you’re litigating this issue, be sure to clearly plead and prove any excuse for nonpayment as a lack-of-willfulness defense. A well-supported defense can make a significant difference, as it did for Father in this case.

Source: In re Nathaniel D. (Tennessee Court of Appeals, Eastern Section, September 19, 2025).

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