The case involves consolidated appeals concerning custody modifications for E.J.M., born October 31, 1994, to parents Lee T. Myers (father) and Sandra Brown (mother), who were never married. The mother was designated the primary residential parent, while the father was granted parenting time and ordered to pay child support. The father first petitioned to modify custody in 2002, but the trial court denied the request, a decision affirmed on appeal (E.J.M. I). Subsequently, he filed a second petition based on new facts post-appeal, which led to a juvenile court ruling that maintained final decision-making authority with the mother, despite ordering joint custody. The father appealed this decision as well.
Following this, the father submitted another modification petition based on facts arising after the joint custody decision. This petition was dismissed by a different juvenile court judge, who criticized the father's repeated filings and cited a lack of jurisdiction due to the pending appeal.
The appeals were consolidated but initially dismissed for a procedural defect, which was later rectified. The appellate court reversed the juvenile court's conclusions, asserting that the trial court retains jurisdiction to modify custody based on new facts even during an appeal. The case was remanded for further proceedings on the father's petitions to modify custody. The opinion was delivered by Judge Holly M. Kirby, with Judge Alan E. Highers joining and W. Frank Crawford not participating.
The document outlines a custody dispute involving E.J.M., a child of a single mother and a father with a successful dental practice. The mother, living in Southaven, Mississippi, initially had legal representation but later represented herself pro se, while the father has consistently had legal counsel. A guardian ad litem was appointed for E.J.M. During extensive litigation, the parties reached a custody agreement in April 2002, which designated the mother as the primary residential parent, with shared decision-making responsibilities regarding the child's welfare, and established psychologist Dr. Peter Zinkus as the final arbiter for disputes.
Shortly after the agreement, a new conflict arose when the mother unilaterally removed E.J.M. from a public school and enrolled her in a private school, violating a court order. The father responded with petitions for contempt and a change in custody. Following a temporary custody grant to the father in September 2002, a hearing in June 2003 resulted in a recommendation to restore the mother as primary residential parent, requiring continued counseling with Dr. Zinkus, but omitting his role as the final arbiter. The father's request for a hearing on this decision and an injunction against the mother was filed thereafter.
In September 2003, a new juvenile court judge conducted a hearing, noting that the primary dispute was over the child's education and that the parties were unable to communicate effectively. The judge ultimately decided that the mother would retain the authority to make final decisions regarding E.J.M.'s educational matters.
Father is to remain involved in E.J.M.'s education and may bring issues to court, while Mother has been cautioned against interfering with Father's residential time, which could jeopardize her custody of E.J.M. Judge Lane affirmed Referee Woods’ recommendation to restore Mother as E.J.M.’s primary residential parent. An appellate court upheld this decision, noting that both parents were fit and loving. The child had been placed in Father's temporary custody due to Mother's noncompliance with court orders regarding school placement, but the court determined that her disobedience alone did not warrant a change in custody unless it negatively impacted the child's well-being. The Juvenile Court found no significant change in circumstances that would justify transferring custody to Father.
In a related case, Father contended that he was wrongly stripped of final decision-making authority regarding E.J.M.'s welfare. The court agreed that the evidence showed the parents' inability to cooperate for the child's benefit, leading to the conclusion that the primary residential parent, Mother, should have final decision-making authority.
While the appeal was pending, Mother began taking E.J.M. to a new psychologist, Dr. Shirley Wilson, and later to a physician, Dr. Remilekun S. Adesoji, without notifying Father or Dr. Zinkus. Dr. Adesoji prescribed Ritalin for E.J.M.'s attention deficit disorder, contrary to Dr. Zinkus's earlier assessment that medication was unnecessary. To conceal this from Father, Mother provided the school with Ritalin for administration on Father's parenting days. Father eventually learned of the medication from the school and sought E.J.M.'s medical records, but Dr. Adesoji refused to release them due to Mother's omission of Father's identity in the intake forms. The guardian ad litem for E.J.M. requested that Mother sign a release for the records, which she denied. Consequently, Father filed a petition to modify custody and for contempt against Mother, and on February 9, 2005, he successfully obtained an emergency injunction preventing Mother from administering Ritalin to E.J.M. pending Dr. Zinkus's report.
Mother was ordered to designate Father as E.J.M.’s father in medical records. Upon obtaining these records, Father learned that Mother had been taking E.J.M. to psychologist Dr. Wilson since May 2004, without his knowledge. Dr. Wilson's records revealed that Mother inaccurately reported to him that E.J.M. had been diagnosed with ADHD and claimed E.J.M. was a below-average student, which Father disputed. During a March 24, 2005 hearing, the Guardian Ad Litem (GAL) criticized Mother for seeking treatment from Dr. Wilson and prescribing Ritalin without consulting Father or Dr. Zinkus. Although Mother did not testify under oath, she acknowledged her actions, asserting that she believed she had the authority as the primary residential parent to seek second opinions and make decisions regarding E.J.M.'s care. Father emphasized the requirement for mutual consultation on major decisions, as established in an April 2002 consent order, and expressed surprise at learning E.J.M. was on Ritalin without his prior knowledge. He indicated he was not opposed to the medication but felt he should have been consulted. Father requested to be designated as the primary parent or at least to be included in discussions about E.J.M.'s medications. Referee Woods concluded that Mother had intentionally deceived Father about the medication prescription, marking her actions as a clear violation of the consent order's consultation provision.
Referee Woods granted the petition to modify primary residential status of E.J.M., awarding custody to the father. Mother, representing herself, referenced a recent Court of Appeals decision that granted her decision-making authority. Father's counsel acknowledged the appellate ruling but argued that Mother had acted without consulting him, even attempting to conceal decisions from him. Referee Woods expressed concern that Mother was endangering E.J.M.'s well-being by prescribing significant medication without proper consultation. After reviewing the appellate decision, Referee Woods initially concluded he was required to grant decision-making authority to Mother, stating it was in E.J.M.’s best interest. Consequently, he denied Father’s petition to modify custody. However, after further argument, Referee Woods awarded joint custody, designating Mother as the primary custodian, and ordered her to consult with Father on major decisions regarding E.J.M. Mother was also held in contempt and ordered to pay $1,000 in attorney’s fees to Father. This ruling was confirmed by the Juvenile Court Judge, leading to Father appealing the March 24, 2005, order, referred to as Appeal 1.
In a subsequent matter, referred to as Appeal 2, after the hearing, Mother informed Father of her intention to take E.J.M. to Georgia for spring break, but instead took her to North Carolina and later to New York, with additional unauthorized trips to Canada. These actions violated Referee Woods' prior admonition against exposing E.J.M. to unrelated overnight visitors of the opposite sex. Upon discovering these events through E.J.M., Father faced issues with parenting time, missing his scheduled visitation due to a misunderstanding with Mother. As a result, while Appeal 1 was pending, Father filed another petition to modify custody and for contempt on August 12, 2005.
On November 9, 2005, while a custody petition was pending, Father was denied parenting time with E.J.M. on a scheduled Wednesday. During a subsequent conversation about E.J.M.'s poor school performance, Mother disclosed that E.J.M. was failing three subjects, leading Father to suggest that E.J.M. temporarily live with him. This suggestion sparked an angry argument between the parents, with E.J.M. overhearing and defending Father. Initially, Father appealed a juvenile court decision to the Shelby County Circuit Court, which dismissed the appeal due to lack of jurisdiction. However, this Court found that the dismissal was erroneous and directed the circuit court to transfer the case to the Court of Appeals. Following this, the case returned to this Court.
Father's petition set for a hearing on November 17, 2005, was stricken from the docket due to Mother not being properly served. Nevertheless, Father and others made an ex parte request to Juvenile Court Referee Dan Michael for immediate custody change, citing neglect of E.J.M.'s education. Referee Michael agreed to issue a protective custody order if a formal petition was filed, which led to Father's temporary custody being granted. This order was affirmed at a preliminary hearing by Juvenile Court Referee Cary Woods, who maintained temporary custody with Father pending further proceedings.
The hearing on Father’s custody petition and protective order was scheduled for December 1, 2005. Mother, appearing pro se, requested a continuance to secure legal counsel, which was denied. The hearing proceeded with Father’s attorney outlining the litigation history, including previous orders regarding custody, disputes over E.J.M.’s medication, and recent conflicts regarding parenting time.
The Guardian ad Litem (GAL) supported Father's position during a hearing before Referee Michael. Mother briefly expressed her view, referencing a lengthy Juvenile Court file and stating that she could co-parent effectively with Father’s wife but not with Father, citing fatigue from ongoing court proceedings as a reason for not having witnesses. Father testified about several issues, including a lack of communication regarding changes in travel plans to Georgia and New York, where he objected to Mother’s boyfriend accompanying them, violating a previous agreement. He also mentioned occasions when E.J.M. did not visit him as scheduled and recounted a phone call regarding E.J.M.'s academic struggles, during which Mother reacted negatively to his suggestions. Father argued that joint custody was ineffective due to Mother's inability to co-parent and expressed a desire for primary custody.
Mother responded, attributing missed visitation to confusion over scheduling and acknowledged her failure to inform Father of itinerary changes. Referee Michael indicated he would prevent Mother from having her boyfriend overnight in the child's presence, to which Mother agreed. Mother admitted to not consulting Father about E.J.M.'s ADD medication but claimed discussions often led to objections and court appearances. Father's wife, an elementary school teacher, testified about her involvement in E.J.M.'s education. After considering the complexity of the case, Referee Michael took the matter under advisement, allowing E.J.M. to remain with Father during the review process. On December 13, 2005, Referee Michael recommended dismissing Father’s petition for custody and contempt, citing an ongoing appeal regarding custody, and noted that Father had temporary custody as per a prior court order. On December 19, 2005, without additional hearings, he also recommended dismissing Father’s petition for protective custody.
On December 20, 2005, Referee Michael determined that all matters concerning the child were under the jurisdiction of the Tennessee Court of Appeals, dismissing the Father's petition for a protective custody order and returning custody of E.J.M. to the Mother. The order did not impose restrictions on the Mother's overnight guests. Unaware of the orders made on December 19 and 20, the Father and the Guardian Ad Litem (GAL) filed a joint motion for the Juvenile Court to issue findings of fact and conclusions of law, which was scheduled for a hearing on February 9, 2006. The Father appealed the dismissal of his petition on January 10, 2006.
During the February 9 hearing, Referee Michael, who had reviewed the entire litigation file, noted the extensive history of disputes between the parties, including over 30 actions and multiple appeals. He highlighted that the Mother had initiated five actions related to child support, while the Father had filed 25 actions mostly alleging contempt and seeking custody. Referee Michael cited case law regarding the appellate court's jurisdiction and criticized the Father's numerous custody requests made without the appellate court's permission. He concluded that the Father's behavior appeared to abuse the judicial process and indicated a lack of cooperation. Referee Michael reiterated the dismissal of the Father's petition due to lack of jurisdiction and prohibited further custody actions until a ruling from the Court of Appeals. Special Judge Herbert Lane confirmed this recommendation.
In the appeals, the Father contends that the Juvenile Court Referee Woods mistakenly concluded that the appellate court's decision restricted his ability to be designated as the primary residential parent and improperly ordered joint custody with the Mother as the primary residential parent.
Father raises multiple issues in Appeal 2, asserting that Juvenile Court Referee Michael incorrectly determined that the Juvenile Court lacked jurisdiction to address Father’s recent custody petition due to a pending appeal. Father challenges the referee's injunction prohibiting further custody petitions during the appeal process and argues against the characterization of his repeated petitions as an abuse of judicial process. He also claims an error in the failure to issue an injunction against Mother having a boyfriend stay overnight in the child's presence.
The analysis begins with the jurisdictional question relevant to both Appeal 1 and Appeal 2, specifically the trial court's authority to consider custody petitions amid an ongoing appeal. This jurisdictional matter is a legal question reviewed de novo. It is established that upon the filing of an appeal, jurisdiction shifts to the appellate court, removing the trial court's authority over the subject of the appeal. However, if the trial court has continuing jurisdiction over a child's custody and welfare, this authority persists despite an appeal.
Citing previous cases, the text emphasizes that the trial court can entertain new petitions for custody if there are changes in circumstances that necessitate a review, ensuring the ongoing welfare of the child is prioritized. In this case, the Juvenile Court maintained continuing jurisdiction over E.J.M. from the original paternity action, allowing it to address new developments post-appeal without being limited by the prior appellate decision.
Father’s petitions for custody in Appeals 1 and 2 were based on events occurring after the prior custody order, specifically regarding Mother’s actions related to medication, lack of consultation, and concealment of medical information in Appeal 1, and Mother’s travel with E.J.M., Father’s missed parenting time, and Mother’s hostile remarks in Appeal 2. The Juvenile Court had jurisdiction to consider these petitions despite the pending status of Appeal 1, allowing for potential changes in custody if warranted by new circumstances. Juvenile Court Referee Woods' assertion that the court lacked jurisdiction in Appeal 1 is reversed, as is Referee Michael’s dismissal of Father’s petition in Appeal 2.
Father argues that the failure to designate him as the primary residential parent was an error, asserting that subsequent events signify a material change in circumstances justifying a custody modification. The standard of review for these arguments involves a de novo examination of the Juvenile Court’s factual findings, presuming correctness unless contrary evidence is presented, while legal issues are reviewed without such presumption. The Juvenile Court has broad discretion in custody matters, which are factually driven and determined based on multiple factors, with reversals occurring only in cases of abuse of discretion. Changes to custody orders must be based on a material change in circumstances that serves the child's best interest, with the key consideration being whether such a change occurred after the initial determination.
Determining a change in custody requires assessing whether a material change in circumstances has occurred, based on three key factors: (1) the change must occur after the existing custody order; (2) the change was not known or anticipated when the order was made; and (3) the change must significantly impact the child's well-being. A parent's change in circumstances can qualify as material if it affects the child's welfare. After establishing a material change, the next step is to evaluate if modifying custody serves the child's best interests, as outlined in Tennessee Code Annotated § 36-6-101(a).
The trial court must maintain a strong presumption in favor of continuing the current placement. In Appeal 1, Juvenile Court Referee Woods considered testimony regarding Mother’s actions in obtaining and administering ADD medication to their daughter, E.J.M., without informing Father, thereby endangering E.J.M.’s well-being. Woods concluded that Mother's deception constituted a material change in circumstances justifying a change in custody designation, although he initially refrained from doing so due to a misunderstanding of a previous appellate decision. The evidence supports that serious risks could arise if Father was unaware of E.J.M.’s medication, highlighting the importance of parental communication regarding health matters.
In Appeal 2, further hearings examined Mother's trips with E.J.M., missed parenting days by Father, and a contentious interaction between the parents in E.J.M.'s presence concerning her declining academic performance.
Referee Michael initially granted emergency protective custody to Father based on representations made to the Court, possibly by Father’s counsel and/or the Guardian ad Litem (GAL) ex parte. Referee Woods later expressed feeling “bound” by an appellate decision while ordering joint custody, despite the appellate opinion indicating that the parents could not collaborate effectively and that their ongoing power struggle harmed the child, E.J.M. The court found E.J.M. to be “dependent and neglected” due to Mother's alleged neglect of her education.
During a subsequent hearing, Referee Michael reviewed the case history presented by Father’s counsel, heard testimonies from both parents, and examined the case in detail. He ultimately dismissed Father's petition to be designated as the primary residential parent on jurisdictional grounds without making factual findings on the petition's underlying events. However, Referee Michael indicated Father's predominant role in the ongoing disputes, describing him as having a “relentless approach” to litigation, an “unbending bias against cooperation,” and engaging in actions that might constitute an abuse of the judicial process.
The record supports Referee Michael's observations regarding Father’s excessive reliance on litigation and meticulous documentation of Mother's perceived failures, which hindered their ability to establish a cooperative parenting relationship and increased stress on E.J.M. The consolidated appeal reflects conflicting views from the trial judges: one suggesting Mother’s deceitful actions might justify designating Father as the primary residential parent, while the other highlights Father’s continuous litigation as a barrier to cooperation. Both judges assessed the parties' credibility and demeanor, arriving at conclusions that are well-supported by the record.
The trial court has the jurisdiction to fully address Father's petitions but declines to designate him as the primary residential parent at this time. The case is remanded to the Juvenile Court for reevaluation of Father's custody petition, considering the parties' history of non-cooperation, Mother's recent deception regarding medication, and Father's ongoing litigation. Joint custody arrangements are discouraged. The Juvenile Court must also reassess the necessity of the Guardian ad Litem (GAL), Dr. Zinkus, and the requirement for the primary residential parent to consult with both the other parent and the GAL on significant decisions. The parties are prohibited from allowing the child to have overnight visitors of the opposite sex. All other issues raised on appeal are set aside. The Juvenile Court's decisions regarding joint custody in Appeal 1 and dismissal of Father's petition in Appeal 2 are both reversed, and the case is remanded for further consideration. Costs of the appeal are to be shared equally between the parties.
