Utah Grandmother Can’t Get Custody Away from Mom’s Cousin

Tennessee child custody case summary on grandparent custody.

In re Cassi J.

The child in this Hamilton County, Tennessee, case was born in 2010.  Until 2012, she lived with her maternal grandmother in Chattanooga, Tennessee.  When the grandmother moved to Utah in 2012, the girl and her mother remained in Tennessee.  They also moved to Utah in 2014 and resided with the grandmother.  But after about two years, the relationship was strained, and the  mother and daughter moved to their own apartment in 2017.

In 2018, the mother contacted her cousin in Tennessee.  Due to financial difficulties, they agreed that the girl would move in with the cousin until the mother could get back on her feet and return to Tennessee.  The mother gave the cousin a power of attorney to give her legal authority to act on behalf of the mother.

In 2018, the cousin filed a petition for temporary custody so that she could enroll the girl in school.  The court granted this petition after asking the mother to send a letter to the court acknowledging the cousin’s temporary custody.

When the grandmother caught wind of this, she filed a petition with the Tennessee juvenile court seeking custody, on the grounds that the child was neglected.  She requested that the child be allowed to live with her in Utah.  She also retained a lawyer in Utah who filed a petition that the Tennessee court lacked jurisdiction, since Utah was the home state under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

The grandmother then filed a motion in the Tennessee juvenile court to dismiss the cousin’s temporary custody petition.  The case was heard by a magistrate, who held a telephone conference with the judge in Utah.   The magistrate denied the grandmother’s petition, and held that custody would remain with the cousin.

The grandmother filed a motion for rehearing, which was heard in 2019 by Juvenile Court Judge Robert D. Philyaw.  At the hearing, the grandmother admitted that she never believed that the child was in any danger, and that the cousin was properly caring for the child.  There was evidence that the grandmother was allowed to visit the child in Tennessee and have telephone calls.  The mother and cousin, however, did not allow visitation in Utah, since they didn’t trust the grandmother to return the child to Tennessee.  The mother also testified that she planned to return to Tennessee just as soon as her Utah lease expired.

Judge Philyaw affirmed the magistrate’s order, and continued custody with the cousin.  The grandmother then appealed to the Tennessee Court of Appeals, acting without an attorney.

The appeals court first noted that a pro se litigant are not excused from complying with the rules, even though the court should take into account that they have no legal training.

In this case, the grandmother’s brief didn’t comply with the applicable rules.  Most importantly, her brief didn’t make reference to the record and cite authority in support of her arguments.  The appeals court noted that it has no obligation to “verify unsupported allegations” or to “research and construct the party’s argument.”  Nonetheless, the court used its discretion to take a look at the merits of the grandmother’s case.

It first noted that, even though the child had resided with the grandmother for four of her six years, most of that time also included the mother in the home.  It also reviewed the evidence of the mother’s alleged unfitness, and concluded that the grandmother had not proven her case.  Indeed, the lower court had concluded that the mother had made responsible decisions and was mature and responsible.  The appeals court agreed that the record supported these conclusions.

The appeals court also noted that the grandparent visitation statute didn’t apply to the case.  That statute comes into play only when the custodial parent denies visitation to a grandparent, and there was no evidence that visitation had been blocked by the mother or cousin.

The cousin, mother, and guardian ad litem all argued that the grandmother’s appeal was frivolous, and they should be awarded damages for that reason.  The appeals court agreed that the grandmother had failed to present any factual allegations or legal arguments that would support her case.  Therefore, it sent the case back to the lower court to compute the damages to be awarded.

For these reasons, the Court of Appeals affirmed, and remanded the case to calculate damages for the frivolous appeal.

No. E2019-00727-COA-R3-JV (Tenn. Ct. App. June 2,  2020).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Grandparent Visitation Rights Law in Tennessee.

See also Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring examples of parenting plans and child support worksheets from real cases available on Amazon.com.