Facts: Mother and Father are the unmarried parents of Child. In 2015, the Juvenile Court established a permanent parenting plan that gave them equal parenting time with Child.

Six years later, Father sought to modify the parenting plan. Citing concerns about Child’s safety, Father sought custody and asked that Mother’s parenting time be suspended or supervised.

The Juvenile Court granted Father temporary custody of Child. Mother’s parenting time was severely limited and ordered to be supervised by a maternal relative. The court also required Mother to undergo mental health and alcohol/drug assessments.

Over time, the court incrementally increased Mother’s parenting time, eventually allowing more contact with Child. However, the court ordered Mother to submit to periodic drug testing. When Mother failed to comply with the testing requirements, the trial court found her in contempt. In connection with that contempt finding, the court ordered Mother to pay Father’s attorney’s fees incurred due to the contempt.

A Juvenile Court magistrate heard several days of proof on Father’s petition to modify the parenting plan. The magistrate found there was a material change of circumstances and that modifying the parenting plan was in Child’s best interest. Father was designated the primary residential parent under the modified plan, and Mother received unsupervised parenting time with Child every other weekend and one evening each week.

By agreement, the parenting plan was later amended so each parent would have three weeks of parenting time with Child during summer breaks.

Mother requested a de novo review of the magistrate’s decision by the Juvenile Court judge. After reviewing the record, the Juvenile Court judge found no abuse of discretion by the magistrate. The judge concluded that Mother’s request for review lacked merit and affirmed the magistrate’s ruling in its entirety.

Mother appealed the Juvenile Court’s decision, raising five issues related to the parenting plan modification and the contempt finding. Per TCA § 36-5-103(c), Father asked the Court of Appeals to award him the attorney’s fees he incurred on appeal. After the case was fully briefed, Mother filed a motion to voluntarily dismiss her own appeal. Father opposed the dismissal unless the appellate court granted his request for attorney’s fees. The Court of Appeals allowed Mother to dismiss her appeal but ordered that the only remaining issue would be Father’s request for attorney’s fees.

On Appeal: The Court of Appeals granted Father’s request for attorney’s fees.

Per TCA § 36-5-103(c), a prevailing party may recover reasonable attorney’s fees from the other party in any proceeding to enforce or modify any provision of a permanent parenting plan or any action concerning the custody or change of custody of any children. The statute applies to parenting disputes, even where, as here, the parties were never married to each other.

To be a prevailing party under the statute, a decision on the merits or a material alteration in the legal relationship between the parties is unnecessary. A party may prevail simply by defending and maintaining the status quo.

The Court determined that, as the prevailing party, it was appropriate for Father to recover his attorney’s fees on appeal:

Like the trial court, we have the discretion to award fees under the statute. In exercising our discretion, the purposes behind the statute and the circumstances of the appeal should be considered. Given both considerations, an award of attorney’s fees to [Father] is appropriate. One purpose of the statute is to protect a child’s legal remedies by relieving the parent of the expense of pursuing the remedies on behalf of the child in court. [Father] moved to modify the parenting plan to shield the child from a potentially unsafe environment. He prevailed on this point in juvenile court, and the dismissal of [Mother]’s appeal preserves that result.

Because Father successfully maintained the outcome of the modified parenting schedule, the Court concluded that Father was the “prevailing party” under Tennessee law even though the appeal did not result in a decision on the merits. The appellate court exercised its discretion to require Mother to pay Father’s attorney’s fees incurred in the appeal. The case was remanded to the Juvenile Court to calculate the amount of Father’s reasonable attorney’s fees for the appeal.

K.O.’s Comment: A “prevailing party” is broadly defined in the context of custody and parenting plan disputes. A parent who successfully defends the trial court’s decision is still considered to have “prevailed” on appeal even if the other party abandons the appeal before a decision on the merits is made. In this case, Father preserved the modified parenting schedule he had sought when Mother withdrew her challenge, so he emerged as the prevailing party.

Tennessee courts do have discretion in these matters, and they consider the purpose of the statute and the circumstances of the appeal. One purpose of § 36-5-103(c) is to ensure that the cost of legal fees doesn’t dissuade a parent acting to protect a child’s best interests. In practice, this is meant to discourage baseless appeals in child custody cases.

It’s worth comparing this outcome to what happens when an appeal has mixed results. In Sexton v. Sexton, for example, the husband’s appeal of a trial court’s decision was partially successful. Because the wife did not entirely “prevail” on appeal, the Court of Appeals denied her request for attorney’s fees for that appeal. In other words, when both sides win something on appeal or the appealing party achieves some change in the outcome, Tennessee courts may decide that each side should bear their own appellate costs. By contrast, in this case, Mother’s appeal achieved nothing. She gained no change in the outcome, so Father alone was the prevailing party entitled to fees.

In Tennessee family law, a strategic appeal requires thinking not only about winning or losing the case, but also about who will ultimately pay for the battle.

Source: Justin Rouse v. Emily Sullivan (Tennessee Court of Appeals, Eastern Section, October 31, 2025).

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