TBA Law Blog

Posted by: Marlene Moses & Manuel Russ on Apr 23, 2019

Journal Issue Date: May 2019

Family law practitioners should be aware of a bill currently making its way through the General Assembly this session that would alter the jurisdiction of child custody in a small but significant way. At the time this article was composed, the proposed legislation had been passed by the full House, and the Senate Judiciary Committee recommended it for passage by the full Senate and placed it on the Senate’s upcoming calendar.

In all likelihood, it will become law in short order. (UPDATE: Gov. Lee signed the legislation on April 18 and it became Public Chapter 167 on April 24, and became effective that day. The details are at http://wapp.capitol.tn.gov/apps/BillInfo/default.aspx?BillNumber=SB0719&GA=111.)
As practitioners are aware, a circuit court will have jurisdiction to adjudicate a divorce proceeding and, during that process, make dispensation for the care and custody of any minor children that result from that marriage through a permanent parenting plan that is incorporated into the final divorce decree. Continuing forward during the minority of those children, the circuit court would generally retain jurisdiction to modify the permanent parenting plan as is appropriate based on changes in the circumstances of the parties and/or the children as long as the parties continue to reside within the jurisdiction.1

However, the General Assembly has granted the juvenile courts of Tennessee the “exclusive original jurisdiction” to adjudicate matters of dependency and/or neglect of any minor children within their jurisdiction that have been so mistreated.2

How is one to proceed when, for example, there is the credible allegation that one of the parents is using illegal drugs in the presence of or during the parenting time with the minor children? Should this be filed pursuant to the continuing jurisdiction of the circuit court which permits the court to both award “custody and control of such child or children … as the welfare and interest of the child or children may demand” and the “decree shall remain within the control of the court and be subject to such changes or modification as the exigencies of the case may require”?3 Or should the attorney file in the juvenile court since allegations of drug use and the concurrently unsuitable environment it creates for children fall within the parameters of a “dependent and neglected” child which the juvenile court is required to handle?4

Two 2018 cases highlighted the difficulties in dealing with this issue effectively. The two cases have the same general facts, but two different panels of the Court of Appeals reached opposite conclusions largely based on the specific circumstances of the particular case. In Haak v. Haak, the Tennessee Court of Appeals considered the case of a petition to modify a parenting plan based largely on the mother’s drug problem that led to felonious criminal behavior on the part of the mother.5 During the trial of the matter, the mother admitted to her prior abuse of prescription drugs and the criminal charges that stemmed from that abuse, but claimed that, at the time of trial, she had been sober for a considerable amount of time and thought that her prior drug use was an insufficient basis for a change of custody.6 The father was also planning on moving back to New Jersey where he found better employment and, ultimately, based on a totality of the circumstances, the court determined that a change in custody was warranted and awarded the father primary residential parent status.7 In reviewing the case, the Court of Appeals determined that the trial court had reached the proper conclusion based on all the factors outlined in Tenn. Code Ann. § 36-6-106(a) and affirmed the ruling of the trial court. Importantly, in this case, the mother never argued that the matter should have been transferred to the juvenile court due to what were, essentially, allegations that the minor children were dependent and/or neglected due to her conduct.8 Consequently, the Court of Appeals was silent as to that issue in the Haak case.

In the matter of Cox v. Lucas, the Court of Appeals was presented with largely similar circumstances. Mr. Cox, the ex-husband of Ms. Lucas, filed an emergency petition for relief, including a change of custody, with the Circuit Court based in large part on the allegations of drug related activities on the part of Ms. Lucas.9 Ms. Lucas filed a motion to dismiss with the trial court for lack of jurisdiction, said motion was denied, and it was the sole issue before the Court of Appeals for consideration on appeal.10 As Ms. Lucas raised the specific issue of subject matter jurisdiction, whereas Ms. Haak did not, the Court of Appeals analyzed the competing jurisdictional claims of the parties. The court reviewed other cases where the appellant had similar arguments to that of Ms. Lucas, namely that the allegations in the petition to modify custody were, in fact, allegations of dependency and/or neglect and the circuit court lacked subject matter jurisdiction.11 The court made clear that such a determination is done on a case-by-case basis and, in Cox, the court concluded that the majority of the allegations that Mr. Cox made in his petition should be characterized as dependency/neglect related as opposed to simply a post-divorce modification.12  Based on this conclusion, the Court of Appeals reversed the decision of the trial court and granted Ms. Lucas’ motion to dismiss based on a lack of subject matter jurisdiction.

As noted, the important distinction in the Haak decision versus the Cox decision was the relief sought by the parties. Based on the case law, it is entirely possibly that if Ms. Haak had raised the issue of subject matter jurisdiction, she would have prevailed as well.

Nonetheless, in order to address this apparent discrepancy in the two panels of the Tennessee Court of Appeals, the General Assembly has introduced legislation in the 2019 session. That proposed legislation, House Bill 854 and Senate Bill 719, would allow “a court to exercise domestic relations jurisdiction regardless of the nature of the allegations unless and until a pleading is filed or relief is otherwise sought in a juvenile court invoking its exclusive original jurisdiction over proceedings in which a child is alleged to be … dependent and neglected.”

If the bill becomes law, then this particular situation would be largely avoided in the future.  A petition for change of custody in the trial court, even if some or all of the allegations in the petition that served as the factual basis for the change of custody contained conduct that amounted to dependent and/or neglectful acts, would remain in the trial court as long as there was no intervening action filed in the juvenile court that would then supersede the jurisdiction of the trial court. Clearly, a moving party seeking a change that had filed in the circuit court would have little incentive to then file a competing action in juvenile court. However, this bill still leaves open the possibility, which can be utilized even without the change, that the respondent may file a competing action in juvenile court, what would essentially be a counter-petition, for dependency and/or neglect, and then the juvenile court would take jurisdiction and stay any proceedings on any actions in the circuit court.

The ultimate take away for the family law practitioner here is the proposed change does clarify the existing situation and allows for a reduction in duplicative litigation by permitting petitions of this nature to go forward in the circuit court absent some intervening petition in juvenile court. However, it does not entirely foreclose the possibility that the juvenile court will ultimately have jurisdiction of the matter.

MARLENE ESKIND MOSES is the principal and manager of MTR Family Law PLLC, a family and divorce law firm in Nashville. She is a past president of the American Academy of Matrimonial Lawyers. She has held prior presidencies with the Tennessee Board of Law Examiners, the Lawyers’ Association for Women and the Tennessee Supreme Court Historical Society. She is currently serving as a vice president of the International Academy of Matrimonial Lawyers. The National Board of Trial Advocacy has designated Moses as a Family Law Trial Specialist.

MANUEL BENJAMIN RUSS earned a bachelor of arts from Johns Hopkins University, a master of arts from University College London, and a law degree from the Emory University School of Law. He is in private practice in Nashville focusing primarily on criminal defense.

1. Tenn. Code Ann. § 36-6-101(a)(1); Tenn. Code Ann. § 36-6-217.
2. Tenn. Code Ann. § 37-1-103(a)(1).
3. Tenn. Code Ann. § 36-6-601(a)(1).
4. Tenn. Code Ann. § 37-1-103(a)(1).
5. Haak v. Haak, W2018-00048-COA-R3-CV, (Tenn.App., 2018).
6. Id. at p. 2-5.
7. Id. at p. 5-15.
8. Id. See page 5, Issues Presented.
9. Cox v. Lucas, E2017-02254-COA-R3-CV, (Tenn.App., 2018), at Pp. 2-3. In February of 2019, the Tennessee Supreme Court granted certiorari in this matter and it is currently pending before the court at the time of publishing.
10. Id. at p. 4.
11. Id. at p. 7-10.
12. Id. at p. 10-12.