Tennessee Dad Gets Custody Despite Bad Grades and Discipline Problems

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

Terri Ann Kelly v. Willard Reed Kelly – Tennessee divorce custody

The mother and father were married about 18 years at the time of their divorce, and were parents of a son, 15, and daughter, 13.  The father was a stockbroker, and the mother had college degrees but had not worked much during the marriage.  At the time of trial, she was working for minimum wage, but seeking a better job.

The son was having difficulties at school due to engaging in inappropriate behaviors and associating with bullies.  A school counselor testified that this would be best dealt with by the son being with the mom and siblings.  She asserted that she was a “proponent of kids being with their mom and their siblings.”  The son testified as to his desire to stay with the father, where he was living at the time of trial.

The trial court awarded custody of both children to wife.  With respect to the son, the trial court found that the father had been somewhat inattentive as to the son’s doing homework and studying.  The trial court found that the father was being more of a “buddy” than a father, and didn’t make hard choices.  The father didn’t find certain “pranks” to be serious.  The trial court also found that keeping the siblings together would be beneficial, and that the mother had a strong family network.

Both parties filed appeals to the Tennessee Court of Appeals.  In the father’s appeal, he argued that the trial court erred in granting custody of the son to the mother.

The Court of Appeals first listed the factors to be used in naming a primary residential parent.  It first noted that the son’s time with his father had been “less than flawless”.  His grades had been mediocre, and there were disciplinary issues.  However, the Court of Appeals did agree that it was error to listen to the testimony of the school counselor, and her opinion as to keeping children together with siblings and mothers.  Normally, the trial court would be able to weigh this testimony better than an appellate court.  But in this case, the testimony was given by phone, in which case the trial court did not have this opportunity.  Also, since the son would need to move and change schools, the court also considered these factors.

The Court of Appeals carefully considered all of the evidence, and concluded that it preponderated against the trial court’s finding with respect to the son.  Therefore, it reversed the trial court’s finding, and remanded the case for a new parenting plan.  It held that the new parenting plan should name the father as the primary custodial parent.

The Court of Appeals also considered a number of other property issues.  Because of the number of issues, the costs of appeal were assessed equally against both parties.

No. E2012-02219-COA-R3-CV (Tenn. Ct. App. Aug. 6, 2013).

See original opinion for exact language.  Legal citations omitted.

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