Make-Up Visitation Gave TN State Custody Jurisdiction

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

Barry Craig Taylor v. Sarah Ann McClintock – Tennessee divorce custody jurisdiction

In 2004, Barry Craig Taylor and Sarah Ann McClintock were married in Sumner County, Tennessee.  They then moved to Florida, where their daughter was born in 2005.  In 2008, they were divorced in Orange County, Florida, and the mother was named the primary residential parent.  The father was awarded residential parenting time every other weekend, five weeks during the summer, and alternate holidays.  The original decree noted that if the father moved more than four hours away from the mother, his parenting time would consist of seven consecutive days per month instead of the alternate weekends.

The father moved back to Tennessee, and numerous parenting issues were brought before the Florida court.  In 2012, the father was allowed make-up visitation time, and in 2013, the mother was allowed to relocate to Alabama.  Because of his right to make-up visitation, the Florida court allowed the father to have parenting time in Tennessee for over six months in 2013.  In August 2013, the father filed a petition in Sumner County, Tennessee, to register the Florida court orders in Tennessee.  He also made a motion in Tennessee to modify the Florida custody determinations, and asked to be named the primary residential parent.  He argued that the Tennessee court now had jurisdiction, and that there had been a substantial change of circumstances.  He noted that nobody lived in Florida at that point, and the child was no longer connected to Florida.  The Sumner County court ruled that it had no jurisdiction, since jurisdiction was still with the Florida court under the Uniform  Child Custody Jurisdiction Act (UCCJA).  The father then appealed to the Tennessee Court of Appeals.

The appeals court first noted that the case presented a question of law, and there is no presumption of correctness of the lower court’s order.  On appeal, the father argued that under the language of the UCCJA, Tennessee was now the daughter’s home state, after her long stay there.  The mother, however, argued that the trial court correctly determined that Florida was still the girl’s home state, since she was in Tennessee only pursuant to the Florida order giving the father make-up visitation time.  The court then examined the statute.

The first factor considered was whether Florida had exclusive, continuing jurisdiction over the dispute.  The lower court had relied on this factor, since the Florida court had specifically retained jurisdiction in its order.  The appeals court, however, held that it needed to look at the parties’ actual residence.  In this case, the sole question was whether the parties continued to live in Florida, and clearly they did not.

After determining that Florida did not have jurisdiction, the next issue was whether Tennessee did have jurisdiction.  In this case, the UCCJA provides that a state acquires jurisdiction when the child has lived with the parent in a state for more than six months.  Because the daughter had lived in Tennessee for more than six months, Tennessee acquired jurisdiction.  The mother argued that this was a “temporary absence” from Florida, and cited a number of cases.  However, the appeals court examined those cases and concluded that they were not on point.

Finally, under the UCCJA, the court must decide whether it should exercise jurisdiction in the particular case.  In some cases, for example, the court might conclude that another forum is more convenient.  In this case, the lower court had not looked at those factors, and the appeals court concluded that it was necessary to remand the case to make that determination.  For that reason, the court remanded the case to Sumner County for a determination of those factors.

No. M2013-02293-COA-R3-CV (Tenn. Ct. App. July 25, 2014).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Tennessee Child Custody Law.  See also Miles Mason’s book available on Amazon.com Tennessee Parenting Plans and Child Support Worksheets: Building a Constructive Future for Your Family featuring actual examples of parenting plans and child support worksheets from real cases.