Maternal Grandmother Wins Custody Battle Over Tennessee Father
Tennessee law case summary on custody law in Tennessee divorce and family law from the Tennessee Court of Appeals.
Debbie Sikora Ex Rel. Shelley Mook v. Tyler Mook Et Al.
This is a custody battle in which the father and paternal grandparents appealed the designation of the maternal grandmother as the primary residential parent after the mother of the child disappeared.
The mother, Shelley Mook, and the father, Tyler Mook, were divorced in October 2009 following a brief marriage. During the marriage, the mother was the victim of domestic violence at the hands of the father. They had one child who was 7 years old at the time of the appeal. The final divorce decree named the mother the primary residential parent of the child and the father was given visitation rights. The mother mysteriously disappeared in Tennessee in February 2011, during her parenting time with the child. The maternal grandmother, Debbie Sikora, immediately traveled to Tennessee from Pennsylvania where she lived and a week later filed an emergency petition seeking visitation with the child. A week later she filed an amended petition asking for custody of the child. She was granted custody every other week. The father and the paternal grandparents (who were named in the maternal grandmother’s petition) also filed petitions asking that the father, or alternatively his parents, be granted custody of the child.
Following a hearing in July 2011, the trial court named the maternal grandmother as the primary residential parent. During the trial, the father frequently claimed the Fifth Amendment privilege against self-incrimination and refused to answer many questions. The father did not provide much information about his role as parent and did not even testify regarding his love for the child or any future plans for them as a family. The trial court found that because this was a civil case, the court could draw negative inferences from the father’s refusal to answer and the court also found that he was not a credible witness. Based on the evidence presented at trial, which included testimony about the father’s drug use, drug trafficking, violent behavior (including an incidence of road rage in which he chased down the mother in her car while the child was in the car) and history of domestic abuse, the court found that the Father was unfit to parent, posed a substantial risk of harm to the child, and that the child was dependent and neglected.
Father’s appeal for custody denied
The court of appeals addressed the numerous claims the father and the paternal grandparents made, ultimately upholding the decision of the lower court. The court of appeals denied the father’s claim that the trial court lacked jurisdiction to determine “dependency and neglect,” which is normally tried in Juvenile court. The appeals court found that the issue at hand was one of custody, which requires a determination of substantial risk to the child. By determining that the child was dependent and neglected, the court concluded that remaining with the father posed a substantial risk to her welfare.
The appeals court also rejected the father’s claim that the evidence presented at trial was insufficient to overcome his constitutional parental rights. In order to remove a child from the custody of the parent to the custody of a non-parent, there must be a finding of “substantial harm to the child” and only then may the court determine what is in the best interests of the child. The burden of proof is on the non-parent and the maternal grandmother met this burden according to the findings of the lower court.
The court of appeals also denied the father’s claim that evidence of his conduct prior to the divorce in 2009 cannot be brought to the current case. He claimed that since the case had already concluded, res judicata applied, which bars a second suit from being brought between the same parties. Both courts held that the earlier custody and divorce case was between the mother and the father, while the current custody conflict was between the father and the maternal grandmother, so res judicata does not apply and the same evidence can be admitted.
The appeals court noted that “circumstances which constitute a risk of substantial harm to a child have not been defined by our courts,” primarily because each situation and the individuals involved are unique. The court held, however, that the threat must be real, and not just a theoretical possibility and that past conduct should be considered to determine the individual’s parenting ability. The court held that the evidence provided was “more than sufficient” to conclude that the child would be at risk of harm if she were placed in the father’s custody.
The court then concluded that it was in the child’s best interest for the maternal grandmother to have custody. The maternal grandmother could provide a stable home and income and would not expose the child to danger. The court found that the paternal grandparents could not provide a stable and safe home because they were in denial about the father’s violence and drug abuse. The court also believed it was in the best interests of the child to continue visitations with her father. Finally, the court held that the maternal grandmother was permitted to move the child to Pennsylvania. The issue of relocation is not found under the Parental Relocation Act since this is a case of an “initial custody determination,” not between two parents. The law gives the court discretion regarding the particular arrangements and to do what’s best in each case.
No. M2011-01764-COA-R3-CV (Tenn. Ct. App. Nov. 6, 2012).
See original opinion for exact language. Legal citations omitted.
Memphis divorce attorney, Miles Mason, Sr., practices family law exclusively and is founder of the Miles Mason Family Law Group, PLC. Buy The Tennessee Divorce Client’s Handbook: What Every Divorcing Spouse Needs to Know, available on Amazon and Kindle. To schedule your confidential consultation, call us today at (901) 683-1850.
