Nashville Doctor Awarded Custody After Unproven Allegations of Abuse

Tennessee law case summary on custody in divorce and family law from the Court of Appeals.

In Re Jonathan S. C-B. – Tennessee divorce custody.

The mother and father in this Davidson County, Tennessee, custody dispute were both medical professionals.  They were unmarried but living together when the child was born.  They separated in 2008, and in 2009 the court named the mother as the primary residential parent, giving her decision-making authority.  This was based mostly due to the father’s history of substance abuse.  But the court noted that the father could petition for modification after two years of sobriety and a court-approved aftercare plan.

Shortly after the 2009 order, there was a flurry of court activity after the mother accused the father of sexually abusing the child.  After a nine-day trial, the court concluded that these allegations were unfounded.  In addition, the trial court held that the mother’s hostility was detrimental to the child, and did an about face on its earlier order, naming the father as the primary residential parent.  Dissatisfied with that turn of events, the mother brought the first of two appeals to the Tennessee Court of Appeals.  But the appellate court agreed with the trial court’s determination, and affirmed the order.

Following that order, the child resided with the father, but had parenting time with the mother every other weekend.  But starting in 2011, both the Department of Children’s Services and the Metropolitan Nashville Police Department began having contact with the father regarding more allegations of abuse.  The father was never charged with any crime, and the Department never intervened.  Following that experience, the father filed an emergency petition to suspend the mother’s parenting time.  These were based on his allegations that the mother had presented the child to authorities for the purpose of manipulating a reversal of the parenting order.  The mother asked the court to have a full evaluation of the child by a New York doctor.  She also told the court that there was overwhelming evidence of physical assaults on the child.

The trial court denied the mother’s request to have the New York doctor perform any examinations, but did allow an examination by a Nashville clinic.

Trial was held in August and September 2011.  The trial court, Judge Walter C. Kurtz, ordered yet another evaluation by Dr. Bradley Freeman, a forensic psychiatrist at Vanderbilt Hospital.  His report found that the abuse allegations were very unlikely, and that the allegations had started in response to the mother’s anxiety.  Based upon this testimony, Judge Kurtz denied the mother’s petition, but did allow her a bit more parenting time.  He also ordered that neither party surreptitiously record the child or participate in certain questioning of the child.  The trial court also awarded the father $24,000 in costs and attorney fees.  A second appeal was brought to the Tennessee Court of Appeals.

The mother first argued that she should have been allowed to present more expert testimony, in the form of further rebuttal testimony.  The court examined the history of the expert testimony and concluded that it was not error to exclude this further rebuttal testimony.

The court then had to delve into the claim that the modified parenting plan had faults.  This focused on the allegations of abuse.  The court first made clear that the resolutions of the abuse allegations were findings of fact, and that the trial court is vested with the power to make factual findings.  Therefore, it noted that it must affirm those findings unless the evidence preponderates against them.  The court of appeals reviewed all of the evidence and concluded that this standard had not been met.

The mother also argued that the trial court shouldn’t have awarded attorney fees.  However, the court examined the file and determined that the trial court had acted within its discretion.

The father also argued that the appeal was frivolous, and he was entitled to damages.  However, the court concluded that even though it ruled against her, the appeal was not totally devoid of merit or frivolous.  The court did hold, however, that the father was entitled to his attorney fees for the appeal, and remanded the case to calculate the amount.

For these reasons, the Court of Appeals affirmed and remanded the case to compute costs.

No. M2012-01088-COA-R3-JV (Tenn. Ct. App. Jan. 29, 2014).

See original opinion for exact language.  Legal citations omitted.

The Miles Mason Family Law Group handles Tennessee divorce, child support, alimony, child custody, and parent relocation.  Download our free e-Book, Your First Steps: 7 Steps Planning Your Tennessee Divorce.  A Memphis divorce lawyer from the Miles Mason Family Law Group can help.  To schedule your confidential consultation, call us today at (901) 683-1850.