No Emergency Custody Jurisdiction Without Evidence Child is in State

Tennessee child custody case summary on jurisdiction.

Dillon Brooks v. Heather Avery Andrews

Great job by Joseph W. Smith and Gil Buie, Miles Mason Family Law Group, PLC!

View Joe Smith’s and Gil Buie’s oral argument before the Tennessee Court of Appeals, Western Section:

The father in this Shelby County, Tennessee, case was a professional basketball player for the Memphis Grizzlies.  The child was born out of wedlock in October 2019 in Las Vegas, Nevada, and according to a prenatal paternity test, there was a 99.9% chance that the father was, indeed, the biological father.

At the time the child was conceived, the mother was living in Dallas, but the father met her in Las Vegas.  He claimed that after she became pregnant, she flew to Memphis to visit him, and then moved to Nevada.  During the litigation, she produced a lease showing that she leased a home in Los Angeles, California, from February 2019 until February 2021.  When the child was two months old, the father filed a complaint for custody in Nevada, and about three months later, she filed a complaint for custody and child support in California.

Starting when the child was about nine months old, the mother and child started making trips to Memphis to spend time with the father.  They jointly signed a lease on a condo in Memphis, and the California and Nevada cases were dismissed.  The child spent a few days at the condo over Thanksgiving, but the relationship between the parents quickly deteriorated.

No Emergency Custody Jurisdiction Without Evidence Child is in Tennessee

In December 2010, the father filed a complaint for emergency custody in Tennessee.  He alleged “on information and belief” that the mother and child had resided in Shelby County for about six months.  He asserted that the Tennessee court had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).  He argued that the child was present in Tennessee, and that the child was in danger because the mother had repeatedly flown throughout the U.S. and Canada despite the ongoing COVID-19 pandemic.  He argued that the mother showed a pattern of “bizarre and reckless behavior.”

The father asked for an immediate injunction ordering the mother not to remove the child from Shelby County, or to immediately return the child to Shelby County if already gone.

In his complaint, the father conceded that he was not named on the birth certificate or any court order as the father, but pointed to the paternity test, and asserted that he was an active parent when not involved with the NBA season or training.  He also asked for child support, but conceded that he didn’t know the mother’s financial situation.

The court immediately entered a temporary restraining order ordering the mother not to leave Shelby County with the child, or to return the child to the county.  The mother was also enjoined not to make disparaging remarks on social media.

A Zoom hearing was scheduled for a week later, but only the father and his attorney appeared.  They explained that they had been unable to make service of process.  They had looked for the mother at the Memphis condo, but did not find her there.  They also attempted service in Nevada, at the home of the mother’s parents.  They refused to accept service, but the process server left it on the doorstep of the Nevada residence.  They asserted that the mother knew about the litigation, but continued to fly around the country with the child, despite the pandemic, and even though she herself had contracted COVID-19.  The father alleged that the mother had posted a photo of herself on a private plane with the child, with the caption “catch me if you can.”

After the hearing, the court issued an injunction placing the child in the father’s custody.  The mother was again ordered to return the child to Shelby County.

The next month, the father moved for default judgment.  The mother’s attorney then filed a limited appearance and then moved to dismiss the case.  The motion to dismiss was based upon lack of personal jurisdiction and subject matter jurisdiction, insufficiency of service of process, and failure to state a claim.

This motion pointed out that the father had never obtained an order establishing paternity, and simply attaching a copy of a DNA test to the complaint was not a proper substitute.  And the mother pointed out that the paternity case had to be brought in a place with subject matter jurisdiction, and Tennessee was not such a place.

The mother also pointed out that the child was not present in Tennessee, which is a prerequisite to jurisdiction under the UCCJEA.

The mother testified by affidavit that she and the child resided in California, and that they never intended to make Tennessee their home.  They had made several trips there, ranging from two to eighteen days, but hadn’t been present in Tennessee since November 26, 2020.  As for the condo lease, she testified that she signed the lease electronically from out of state, because the father said that was necessary if she wanted to access the condo when he wasn’t there.

She testified that she lived with the child in California, received mail at a P.O. Box in California, had a California driver’s license, and had her car registration and insurance in California.  She also testified that the address on her passport, bank accounts, and phone bills were in California, and that she was registered to vote in California.  The child’s nanny also testified by affidavit that the child hadn’t been in Tennessee since November 2020.

At a hearing, the trial court chancellor noted that the mother could have easily “showed up today and brought the baby” to show that the child was fine.  Her attorney pointed out that another parentage action had just been filed in California, and that the Tennessee court lacked jurisdiction.  The chancellor kept pressing the mother’s attorney to disclose the address where the child was.  The father’s attorney then suggested that he was going to file a motion to hold the mother in contempt.

The trial court ruled from the bench that the case was an emergency situation, and that the court intended to protect the child.    The court denied the motion to dismiss for lack of jurisdiction, but there was no discussion of the UCCJEA or any other statute.

The father’s attorney then asked the court to make a “legal finding of paternity,” and the court took that under advisement.  A few days later, the mother requested an extraordinary appeal to the Tennessee Court of Appeals.  She argued that the lower court had so far departed from the usual course of judicial proceedings that an immediate review was necessary.

A few days later, the father filed an amended complaint, asking for custody of the child.

The appeals court noted that there were no written orders, and asked the mother’s attorney to request signed written orders.  Otherwise, however, the appeals court granted a stay.

On February 16, 2021, the trial court handed down a 22 page written order again denying the motion to dismiss.  The order stated that, based on the DNA test, the mother and father were “resumed to have a daughter together,” but there had not been a determination of parentage, a matter that was not yet before the court.

The trial court asserted that it had acquired jurisdiction as a result of the emergency nature of the proceedings.

The trial court went on to find that the mother had unnecessarily exposed the child to COVID-19, and that she had disparaged the father on social media.  It further found that she had failed to cooperate with the court.  Even though the order conceded that the father didn’t know the child’s location, the court concluded that the mother and child were in Tennessee at the time of filing of the complaint.

In a later order, the trial court pointed out that the mother had showed a variety of different zip codes with respect to her California address, and that this called into doubt her credibility.

The Court of Appeals then granted the mother’s request for an extraordinary appeal, but limited to the issue of whether the father had standing to file the complaint.

The appeals court began by noting that parentage is governed primarily by statute, and it reviewed the Tennessee statutes covering the subject.  And under the statutes, when a child is born out of wedlock, absent a court order, the custody of the child is with the mother.

The father conceded that there hadn’t been an order of parentage, but he argued that the DNA test gave him standing.  But the appeals court cited an earlier case holding that “being a child’s biological father is not sufficient, by itself, to qualify a man as a child’s legal parent.”  The constitutional rights of a parent come into play only when parentage is legally established, and in the case of a child born out of wedlock, that requires more than mere DNA.

In this case, the father had not met any of the definitions of a legal parent, and had not established any legal relationship to the child.  In short, he had no right to custody, nor even to be told the whereabouts of the child.

The father argued that, because of the emergency situation, the UCCJEA gave jurisdiction.  But the appeals court pointed out that this portion of the statute comes into play only if the child is present in the state.  The court stated that it should not credit conclusory allegations or draw farfetched inferences in order to establish that the child was in the state.

Indeed, on the one hand, the father argued that the child was in Tennessee, but he also argued that the mother had possibly removed him, and the child’s location was unknown.  In fact, he argued that service in Nevada was appropriate because he believed she had spent 73 days in that state during the relevant time period.  The mother submitted her affidavit and that of the nanny, and they showed that the last date the child was in Tennessee was in November, 2020.

The trial court’s finding that the child was in Tennessee at the time of filing was based upon the mother’s allegedly showing different California zip codes.  But even if the mother’s proof was discounted entirely, the appeals court pointed out that the father still hadn’t established his burden.

The father also seized upon a Facebook advertisement that the mother had allegedly placed for a couch for sale in Memphis.  But the appeals court held that this limited evidence certainly did not prove the child’s location.

The Court of Appeals concluded that the trial court’s orders had to be vacated.  But it also noted that the case was complicated by the fact that the father had filed an amended complaint.  However, even though the appeals court stated that it was tempting to address additional issues, they were not properly before it.

The appeals court also declined to rule on the issue of whether the case should be assigned to a different chancellor in the trial court.  It also declined the mother’s request for attorney’s fees.

For these reasons, the Court of Appeals vacated the orders of the lower court and remanded the case.

No. W2021–00106-COA-R10-JV (Tenn. Ct. App. Dec. 27,  2021).

See original opinion for exact language.  Legal citations omitted.

To learn more, see Child Custody Laws 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.