Nashville Court Changes Custody Because of Parent’s Failure to Encourage a Relationship between the Child and the Other Parent: In re Zamorah B. – Tennessee Custody

The child involved in this case was born to unmarried parents. Approximately 4 months after the child was born, Father filed a petition in the Davidson County Tennessee Juvenile Court to establish his paternity and for custody. Father alleged that he had been voluntarily supporting the child and had bonded with the child, but the Mother terminated his contact with the child when the child was 2 months old. A hearing was held before the Juvenile Court Magistrate, who entered a standard Tennessee custody form titled “Parentage Order”, which listed Mother’s name on the line for the child’s Primary Residential Parent. The Order also recognized the father as the child’s legal and biological father, and Father was entitled to visitation with the child. The Parentage Order stated “see attached Visitation Order”, but no such order was attached.

1209894_11404408Shortly after this order was entered, the Mother filed a motion requesting a rehearing before the Nashville Juvenile Court Judge, alleging that visitation was “unfairly decided.” Prior to the rehearing, both parties filed motions related to visitation and custody, which indicated the Father was attempting to exercise his court-ordered parenting time, and the Mother was trying to prevent Father’s visitation.

The Court granted father “extended visitation” during this time and appointed a Guardian ad Litem for the child. Mother subsequently contacted the Department of Children’s Services (DCS) and asked the Department to do a home inspection on the Father’s residence. DCS did perform this home check, and no concerns were raised.

Shortly thereafter, CASA (Court Appointed Special Advocates) was asked to participate in this case. The CASA volunteer and a CASA supervisor both testified at the final custody hearing that they tried to set up visitation for Mother (after the Father received extended visitation time), but the Mother refused their help, objecting to the idea that her time with the child was “visitation” rather than “custody.” As a practical matter, therefore, Father became the child’s sole caregiver around October 2009, and there was no visitation by Mother.

In March 2010, the Court established a visitation schedule for Mother.

After a 10 day hearing, the Davidson County Tennessee Juvenile Court Judge issued a 40 page final Tennessee custody order, recognizing that this was an initial custody determination, and the decision was based on a “best interest of the child” analysis under the factors set forth in Tennessee Code Annotated Section 36-6-106(a).

Mother appealed, claiming the Court should have treated this as a Tennessee custody modification case rather than an initial Tennessee custody determination.

When a trial court makes an initial custody determination, the decision is made on the basis of the child’s best interest. However, when a parent seeks modification of a court’s prior custody orders, the court must first determine whether a material change of circumstances has occurred that affects the well-being of the child.

A review of a juvenile court magistrate’s decision is accomplished through a de novo hearing before the juvenile court judge. It is akin to a new trial. The proceeding before the juvenile court judge was simply a continuation of the original case, not a new action.

The Juvenile Court Judge reviewed all relevant custody factors. The decisive factor for the court was “each parent’s or caregiver’s past and potential for future performance of parenting responsibilities, including the willingness and ability of each of the parents and caregivers to facilitate and encourage a close and continuing parent-child relationship between the child and both of the child’s parents, consistent with the best interests of the child.”

The Court stated:

“No proof has been presented that either parent lacks the ability to perform day-to-day parenting tasks. However, this factor goes overwhelmingly in favor of the father. After being before the court on numerous occasions, the mother has repeatedly refused to abide by the Court’s order regarding derogatory remarks about the father in the presence of the minor child, visitation and medical issues. . . . [T]he mother has continuously allowed her feelings about the father to control her behavior despite numerous Court Orders. . . . The mother has proved that she is completely unwilling to promote, encourage or facilitate a close and continuing parent-child relationship between the child and her father.”

The willingness of a parent to facilitate and encourage a close relationship between the child and the other parent is an important factor for courts to consider in custody cases.

The Tennessee Appellate Court affirmed the Juvenile Court Judge’s decision.

If you have questions about an initial Tennessee custody case or a Tennessee custody modification, contact our office today for your free consultation.

Our office serves the following Tennessee cities for custody cases: Nashville, Brentwood, Franklin, Spring Hill, Columbia, Smyrna, Murfreesboro, Antioch, Donelson, Hermitage, Bellevue, Gallatin, Hendersonville. Contact our office for questions related to other cities.

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