In rare circumstances, the court may award primary custody of a child to a non-parent, instead of the child’s father or mother. The Court of Appeals of Tennessee addressed this issue and the requirements necessary to award child custody to a non-parent in Vinson v. Ball (Tenn. Ct. App. Nov. 9, 2016). The appeal followed the trial court’s order granting primary custody of the children to their maternal grandfather.
In Vinson, the mother and father of two minor children entered into a 2010 agreed order providing that the mother would be the primary residential custodian, and the father would have visiting rights while residing in Louisiana. Sometime thereafter, the mother sent the children to live with their maternal grandfather in South Carolina, since she was unable to financially care for the children on her own. The father did not pay child support to the mother or grandfather, although he did provide for the children when they were visiting him. In 2014, the father filed a petition to modify the parenting order, alleging that the grandfather was interfering with his visitation rights. In response, the mother and grandfather requested that the court formalize the grandfather’s custody of the children because he had been their primary caregiver and financially supported them for many years. After a hearing, the court awarded primary custody of the children to their grandfather and ordered the mother and father to pay child support.
In Tennessee, a parent cannot be deprived of custody in favor of a non-parent unless there has been a finding of substantial harm to the child. The courts have explained that the harm must be a real hazard or danger that is not minor or insignificant, and more than a theoretical possibility. In addition, custody decisions should focus on the parties’ present and anticipated circumstances and their current fitness as custodians. Although the court will consider past conduct, biological parents are not required to demonstrate they are perfect before they can be granted custody of their children.
In Vinson, the trial court primarily focused its substantial harm analysis on the father’s lack of financial support, his allowing the grandfather to support the children for the majority of their lives, and his work schedule requiring him to be absent for weeks at a time on an oil rig. The appeals court held that this was not enough to clearly and convincingly establish that the children would be exposed to a risk of substantial harm if they were placed in the father’s care. In particular, the court considered the father’s financial security and income, the availability of his family to assist in caring for the children while he is working, his ability to provide for and parent the children while they are in his care, and the good relationship between the father and his children. Accordingly, the court reversed the trial court’s award of custody to the grandfather and remanded the matter for a determination on whether the primary residential parent should be modified from the mother to the father.
Custody orders can affect the welfare of your child in addition to your parental rights. At the Nashville firm of Martin Heller Potempa & Sheppard, our family law attorneys provide guidance and legal representation to individuals coping with divorce, alimony and child support payments, child custody disputes, and other domestic issues. To schedule a consultation with one of our experienced divorce attorneys, contact our office by phone at (615) 800-7096 or through our website.