Tennessee Court’s Failure to Consider Preference of Child Caused Reversal of the Trial Court’s Decision: Roberts v. Roberts

The parties, who have two children together, divorced in August 2007. The current case involves a post-divorce modification of the parties’ Tennessee Permanent Parenting Plan Order. By the time of the modification case, only one child was a minor. Both parents sought to be designated the child’s primary residential parent, and the trial court was tasked with determining what parenting arrangement was in the minor child’s best interest.

At trial, Mother claimed that Father had a tendency to place his own interests above those of their child, and Mother also asserted that she was the more stable parent. Father, of course, disputed Mother’s claims and asked that Mother’s parenting time be substantially limited because Mother and her boyfriend had “abused” Father.

Father asked the trial court on numerous occasions to allow the minor child to testify as to his preference regarding where he wanted to live. Father argued that Tennessee Code Annotated §36-6-106  required the court to hear the child’s preference due to the fact that the child was over the age of twelve at the time of trial. The court, however, refused to allow the child to testify, simply stating that the court preferred not to involve children in litigation.

When a petition to modify a Tennessee Permanent Parenting Plan is filed, the court must first determine whether there has been a material change in circumstances since the entry of the parties’ current plan. The parties, in this case, stipulated that there had, in fact, been a material change in circumstances. The trial court then must determine what parenting arrangement is in the minor child’s best interest.

The trial court, in the Roberts case, modified the Tennessee Permanent Parenting Plan to designate Mother as the primary residential parent rather than Father.

On appeal, Father argued that the court erred in weighing the best interest factors, which are set forth in Tennessee Code annotated §36-6-106(a).

Father also alleged that the trial court erred in refusing to allow testimony of the minor child, who was then thirteen years old. Tennessee Code Annotated §36-6-106 lists the factors to be considered in determining what is in the minor child’s best interest. These factors include, in Paragraph 13, “The reasonable preference of the child if twelve (12) years of age or older. The court may hear the preference of a younger child upon request. The preference of older children should normally be given greater weight than those of younger children.”

The trial court determined that the potential harm to the child caused by involving him in litigation outweighed the benefit of the child’s testimony.

The Tennessee Court of Appeals ruled that the trial court erred in not allowing the child to testify. The Court of Appeals noted that, the child, and the child alone, is the person whose preference is sought by Tennessee Code Annotated §36-6-106(a)(13).” That evidence cannot be obtained through other means, such as calling a different witness.

Ultimately, the Tennessee Court of Appeals ruled that, while a child’s preference is not binding upon a trial court, the trial court must consider the preference of a child that is twelve years old or older, when asked to do so.

The plain language of the Tennessee custody statutes requires the trial court to consider a child’s preference, when that child has reached the age of twelve, and the trial court, in this case, erred in excluding that proof.

If you are dealing with a custody dispute, contact our office today to discuss your options!

Sitemap | Privacy Policy | Meet me in Google+ | Find Us in Google+ | by: Helix SEO, IncSEO Service + SEO Web Design

Use of this website and its contents does not generate an attorney/client relationship. Any email correspondence directly to Lauren Wilson Castles, Attorney at Law, from this website is intended for general communication only and does not automatically create an attorney/client relationship.