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In re Noah J.

Court of Appeals of Tennessee, Jackson

March 23, 2015


Session March 11, 2015

Direct Appeal from the Juvenile Court for Shelby County No. Z8480 Dan H. Michael, Special Judge

Margaret A. Reid and Elizabeth W. Fyke, Memphis, Tennessee, for the appellant, William J.

Aubrey L. Brown, Jr., Memphis, Tennessee, for the appellee, Emily W.

Brandon O. Gibson, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Kenny Armstrong, J., joined.



I. Facts & Procedural History

Emily W. ("Mother") and William J. ("Father") began dating in June 2012, when Mother was 20 years old and Father was 29. Mother became pregnant soon after the relationship began. She moved into Father's apartment in November 2012. Mother gave birth to the parties' son, Noah, in May 2013. Father signed a voluntary acknowledgment of paternity and is listed as the child's father on the birth certificate.

Mother and Father had a volatile relationship. Both parties accuse the other of physical violence but deny being physically violent themselves. The police were called to the parties' apartment on numerous occasions. After a particularly heated argument in August 2013, Father moved out of the apartment and into his parents' home. Noah was about three months old at the time. Father filed a petition for custody and visitation on August 29, 2013, in the Juvenile Court of Shelby County. Father sought to be named primary residential parent but, in the alternative, requested joint and equal parenting time for the parties. Mother filed a response and counter-petition, asking the court to limit Father to supervised "non-overnight" visitation due to his history of alcohol abuse and also due to Mother's claims of domestic violence during the parties' relationship.

The matter was heard on or about February 5, 2014, by Juvenile Court Magistrate Harold W. Horne. After the hearing, Magistrate Horne entered written findings recommending that Mother and Father have "joint custody" of Noah, with Mother being named primary residential parent in even years and Father being named primary residential parent in odd years. During the years when either parent was designated as alternate residential parent, he or she would have parenting time with Noah during the first, third, and fifth weekends of each month, on certain holidays, and for two fifteen-day periods during the summer. The designation of primary residential parent was to change each year on August 1. Mother was designated primary residential parent as of the date of the order. Magistrate Horne recommended that each party be responsible for his or her own attorney's fees. These findings and recommendations were confirmed and entered by the Juvenile Court Judge as an order of the Juvenile Court on or about February 24, 2014.

Mother timely filed a request for rehearing before the Juvenile Court Judge.[1] The Juvenile Court Judge appointed another Juvenile Court Magistrate, Dan H. Michael, to rehear the matter as "substitute judge" and "special judge" pursuant to Tennessee Code Annotated section 17-2-122(b). The rehearing occurred on June 26, 2014. By that time, the parties had been operating under Magistrate Horne's parenting schedule for over four months, with Mother having primary residential parenting responsibilities and Father having parenting time every other weekend and for one extended period during early June.

Father was 31 at the time of the rehearing in June 2014. Father owned his own business and also worked two part-time jobs. Father was residing with his parents but continued to pay the rent for the apartment where Mother lived with Noah, in addition to the utilities for the apartment and the cost of Noah's health insurance. He also gave Mother additional cash for Noah's support. Noah was thirteen months old at the time of the rehearing.

Father admitted that he had a long history of alcohol abuse during his 20s. He pled guilty to five DUI charges between 2003 and 2009 and pled guilty to domestic assault in 2010. Father testified that he hit "rock bottom" when he was incarcerated in January 2010, and, upon his release, he began a year-long drug court program that included drug and alcohol testing, intensive outpatient rehabilitation, participation in alcohol and drug treatment groups, and Alcoholics Anonymous meetings. Father completed the drug court program in May 2011. It was not until June 2012 that Father began his relationship with Mother, and Noah was born in May 2013. At the June 2014 rehearing, Father testified that he occasionally consumes alcohol in connection with his work in the restaurant business. However, he claimed that he had not been intoxicated since completing the drug court program three years earlier, in 2011. Father's employer for two years testified that Father was a "model employee" as a restaurant manager. He testified that Father had never failed a drug screen and that he had never seen Father intoxicated, even when vendors brought alcohol to the restaurant for sampling.

Father testified that Mother was using his history of alcohol abuse to "label" him as a drunk when that was absolutely no longer the case. He noted that his vehicle was equipped with an ignition interlock device that does not allow him to start the vehicle if he has consumed alcohol. He voluntarily kept the apparatus on his vehicle even after the restriction on his driver's license was lifted. He claimed that he did so in order to provide "rigid evidence" that he is no longer drinking. Father testified that Mother became belligerent at two visitation exchanges (after he filed his petition for custody) and accused him of being drunk at the exchanges. After the second incident, Father went directly to a police station and requested a Breathalyzer test. The officer was unable to administer the test under such circumstances but did testify at the rehearing that Father did not appear to be intoxicated or impaired. While the custody litigation was pending, Father voluntarily submitted to routine alcohol and drug testing at a local screening facility and passed two hair follicle drug screens and nineteen alcohol screens. Each drug screen was capable of detecting the presence of substances for the past 90 days, and each alcohol screen covered a three to four day period. Father also completed a ten-week program of parenting classes at the Exchange Club. In sum, Father claimed that he was "absolutely reformed from what [he] used to be" so that he could have shared custody of his son. Father's parents ...

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