TN Mom Loses Custody For Ignoring Child’s Special Dietary Needs

Tennessee law case summary on family law from the Court of Appeals.

James Allen Austin v. Marely Torres – Tennessee divorce child custody modification.

The child in this custody case, James Austin, Jr., was born in 2004 to James Austin, Sr., and Marely Torres.  Shortly after birth, the child was diagnosed with Phenylketonuria (PKU), which is a rare genetic disorder in which the body is unable to break down the amino acid phenylalanie (phe).  If the phe is allowed to build up in the blood, it can lead to mental retardation, seizures, and other serious problems.  Phe is found in many foods such as meat, eggs, and dairy products.  Therefore, the diet of someone with PKU must be strictly controlled.

In 2008, the mother and father were divorced, and under their agreed parenting plan, the mother was named the child’s primary residential parent, but with parenting time equally divided.  The father was ordered to pay child support of $60.46 per week.  The parenting plan specified that the child’s food intake would be recorded in a document that was exchanged with the child, and that the diet would be in accordance with the medical condition.

In 2011, the father filed a petition to modify the parenting plan.  He alleged that the mother was not abiding by the dietary restrictions or giving him an accurate record.  A trial was held, and two experts testified.  One was a nurse practitioner, who testified as to the medical effects of PKU.  She also testified that the mother didn’t understand the disease and the importance of maintaining a proper diet.

The other expert was a nutritionist who expressed frustration that the mother was unable to keep good records, and that the mother didn’t believe that the child had PKU.  In addition, the mother had limited English skills, had been arrested for domestic assault, and had her driver’s license suspended.  Davidson County Circuit Judge Carol Soloman found that the mother had not been a truthful witness, and expressed concern about the child’s health and well-being.  As a result, the trial court found that there had been a material change of circumstances, warranting a change in the parenting plan.

Judge Soloman named the father the primary residential parent, and limited the mother to 50 days per year of parenting time.  Dissatisfied with this outcome, the mother appealed to the Tennessee Court of Appeals.

The mother first argued that the trial court should have first sent the case to mediation, since this was called for in the original parenting plan.  But the Court of Appeals summarily dealt with this issue, since she had failed to make this argument in the trial court.  Having decided this preliminary issue, the appeals court then turned to the merits of the case.

The court first determined that there had been a material change of circumstances.  The parenting plan and the expert testimony both stressed the importance of the child’s diet, but the evidence showed that the mother did not believe anything was wrong with the child, and that she was unwilling to conform to the medical requirements.  Based upon this evidence, the appeals court agreed that there had been a material change of circumstances.

The mother next seized upon the fact that Judge Soloman had not used the words “best interest” in the final order, and that the Tennessee statutes require a finding as to the best interests of the child.  However, the appeals court quickly concluded from examining the evidence that Judge Soloman had used the statutory test, even though not using the exact language of the statute.  The appeals court noted that while the lower court must consider all of the relevant factors, it is not required to list all of them in the order.  Here, the appeals court agreed that the most important factor was the danger the child experienced from the mother’s inability or unwillingness to give the child a proper diet with regard to the severe medical consequences of failing to do so.  For that reason, the appeals court refused to disturb the new parenting plan.

The mother had also been ordered to pay $370 per month in child support, and she objected to this as well.  The Court of Appeals affirmed this portion of the order as well.

Finally, the father asked for attorney fees on appeal, calling the appeal frivolous.  However, the Court of Appeals declined to take this step.  For these reasons, the Court of Appeals affirmed the lower court’s rulings.

No. M2012-01219-COA-R3-CV (Tenn. Ct. App. Mar. 20, 2014).

See original opinion for exact language.  Legal citations omitted.

To learn more about parenting law and child custody modification, see Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family, by Miles Mason, Sr.