In the recent case titled Brewster v. Brewster, No. E2011-01455-COA-R3-CV (July 11, 2012), the Tennessee Appellate Court discusses how to use T.C.A. §36-6-106 to determine child custody and primary residential parent status. The Court also affirms that T.C.A §36-5-103 allows awards of attorneys fees in custody cases for married and unmarried parents alike.
Facts: Child was born to Mother, who was not married to Father at the time. Both parents later married other individuals, referred to here as Stepfather and Stepmother. In 2006, a paternity test confirmed Father as the biological dad. Four years later, the State of Tennessee filed a petition to establish his paternity and set child support under T.C.A. §71-3-124. The parents worked out a visitation schedule which they followed for 7 months until Father requested to be the primary parent (PRP) and alleged Mother had domestic violence and substance abuse issues as well as ignoring the child's medical and developmental needs. At the trial, the court kept Mother as the PRP and gave Father 80 days of co-parenting. This was based upon the following: that Mother raised the child almost alone and her emotional ties were stronger than Father's; that Father pursued surrender of his rights; that the testimony regarding neglect was not found convincing, and the record was devoid of medical proof of neglect; that continuity favored Mother; stability favored Father; mental and emotional health were equal, home, school and community favored Mother; and preference was not applicable and the stepparents posed no concern.
Issues: Whether the trial court erred in designated Mother as PRP and whether the trial court erred in awarding Mother her attorneys fees.
Appellate Review: Father argues that the court should not have designated Mother PRP because it was contrary to the preponderance of the evidence. T.C.A. §36-6-106(a) list all relevant factors a court should consider when making a custody decision. The appellate court found the following factors relevant here: the bond between Mother and child was shown by child's initial distress upon beginning visits with Father; Mother had been the primary caregiver; the evidence did not show Mother was neglectful or dangerous to the child; stability favored Mother in light of child's home, school and community records; Father is more stable due to his new Wife, business income and residence. All other factors were found to be equal. Accordingly, the trial court's determination was correct and the decision to keep Mother as PRP was upheld.
Regarding attorneys fees, Father argued that T.C.A. §36-5-103, which allows awards of attorney fees in spouse custody cases, is not applicable here because the parties were never married. Father failed to raise this issue with the trial court, and therefore this argument is not properly brought upon appeal. Further, the Appellate Court has upheld awards of attorney fees in similar cases of unmarried parents and therefore there was no abuse of discretion by the trial court.
The factors discussed in this case are always used in divorce and custody disputes. Be sure to contact a local Knoxville divorce attorney to see how these factors might affect your family.