Supreme Court Reviews Child Custody Case

And Appellate Court's Immediate Issuance Of Mandate

Tuesday, December 19, 2017

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 20 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 ,other 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 ,other’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 20 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 64 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.




Tennessee Unemployment Holds Steady For 3rd Consecutive Month

Tennessee Governor Bill Haslam and Tennessee Department of Labor and Workforce Development Commissioner Burns Phillips today released the statewide unemployment rate for July 2018, and for the third consecutive month the statistic has remained at a historically low 3.5 percent.   Tennessee’s seasonally adjusted unemployment rate has not only remained unchanged since May, ... (click for more)

CARTA Approves Revised Policy On Persons Addressing The Board; To Provide Safety Training To Drivers

The CARTA board on Thursday passed a revised ordinance on persons addressing the board, including a provision that no person shall be allowed to appear before the board more than two times during any consecutive four-month period. The City Council allows speakers twice a month, while the County Commission has no limit on appearances. CARTA meets once a month. The city and ... (click for more)

City Looking For Proposals For Floating Restaurant, Riverboat Excursions

The city is seeking proposals for an exclusive agreement for a berthing agreement that would include a floating restaurant and a vessel for river excursions. Officials said the operation would be another enhancement for the downtown riverfront. The city is seeking an entrepreneur who would enter into a 10-year contract with options up to 10 years more. Officials said, "The ... (click for more)

Soddy Daisy Man Who Robbed 2 Credit Union Branches While Unarmed Gets 4-Year Federal Prison Sentence

A Soddy Daisy man who robbed two credit union branches while unarmed has been sentenced to serve four years in federal prison. Jeffrey Rutherford, 35, appeared before Judge Travis McDonough. Authorities said on Aug. 19, 2016, Rutherford entered the Comtrust Federal Credit Union on Gunbarrel Road while dressed all in black and with his face covered. He approached two tellers ... (click for more)

Harold Austin Will Be Greatly Missed

My dear friend, longtime public servant, Mr. Harold Austin, will be greatly missed. He was with the state of Tennessee and Hamilton County for many years. Doyle Ray Marler (click for more)

Roy Exum: The Saturday Funnies

I have to admit I am still laughing over the fact over 350 newspapers ganged up against President Trump’s stance on Thursday that the media is biased towards his administration. In a concerted effort these newspaper editors proved Trump to be exactly right. How in the name of common sense could any man, event, or natural phenomena cause every newspaper to unite is such a laughable ... (click for more)