In a case involving the custody of two minor children, the Tennessee Supreme Court determined that Father had established that a material change of circumstances had occurred and that it was in the children’s best interests for Father to be designated as the primary residential parent. The Court also reviewed the Court of Appeals’ immediate issuance of the mandate and its order for custody to be transferred from Father to Mother within twenty days.
Father, C.W.H., and Mother, L.A.S., began a dating relationship in 2008 but never married. They had two children together before their relationship deteriorated in 2010. In 2011, Mother decided to relocate to Ohio to pursue an advanced degree; thus, the parties entered into an agreed parenting plan to accommodate the distance. The parenting plan designated Mother as primary residential parent and provided Father with visitation.
After having difficulties exercising his parenting time, Father filed a petition in 2012 to modify the 2011 parenting plan. The parties reached a new agreement in February 2013.
Shortly thereafter, Mother’s sister contacted Father and informed him that Mother actually resided in Nevada with the minor children and that she was employed at the Moonlight Bunny Ranch. Father had believed that Mother resided in Ohio and worked as an independent contractor. Father researched the internet and confirmed these assertions when he found sexually explicit photographs and videos of Mother advertising her services in Nevada. He filed a motion for an emergency temporary custody order and temporary restraining order on March 12, 2013. The magistrate found that a material change in circumstances had occurred and that it was in the children’s best interests for Father to be designated as the primary residential parent. Mother requested a hearing before the juvenile court.
In the juvenile court hearing, the court heard testimony concerning Mother’s employment at the Moonlight Bunny Ranch and testimony relative to the issue of each parent’s hostility toward the other. The juvenile court relied upon Mother’s employment as well as her hostility toward Father in finding a material change in circumstances. The juvenile court ordered that Father be designated as the primary residential parent.
Mother appealed the decision to the Court of Appeals. The court remanded the case for the juvenile court to conduct a best interest analysis, which it had not done. After conducting this analysis, the juvenile court concluded that it was in the children’s best interests for Father to be the primary residential parent. Mother again appealed. The Court of Appeals reversed the juvenile court’s finding of a material change in circumstances based upon Mother’s employment at the Moonlight Bunny Ranch, but because Mother had not preserved the finding of her hostility toward Father as a material change, the Court of Appeals affirmed that finding. The Court of Appeals reversed the juvenile court’s conclusion that the best interests of the children favored Father as the primary residential parent. In doing so, it ordered immediate issuance of the mandate and transfer of custody of the children from Father to Mother within twenty days.
The Supreme Court reiterated its prior holdings that appellate courts should exercise limited review of a trial court’s factual determinations in matters involving child custody and parenting plan developments. The Court concluded that the Court of Appeals usurped the role of the juvenile court by declining to extend deference to the juvenile court’s findings. Applying the appropriate limited scope of review, the Supreme Court held that the juvenile court properly considered the appropriate statutory factors governing the best interest analysis and that the evidence did not preponderate against the juvenile court’s findings in this regard.
The Supreme Court also expressed disagreement with the Court of Appeals’ issuing the mandate immediately, rather than allowing the sixty-four days to pass according to Tennessee Rule of Appellate Procedure 42. Although such issuance is expressly allowed by the rule, the Court cautioned against this exercise of authority in child custody cases absent a reasonable belief that a child would be in danger if the parent awarded custody by the trial court retained custody in the interim because such a chain of events would likely be harmful to the welfare of the child. In this case, there were no allegations of either potential or immediate danger to the children if they had remained in Father’s custody.
To read the unanimous opinion in C.W.H. v. L.A.S. authored by Justice Roger A. Page, go to the opinions section of TNCourts.gov.
