Session January 18, 2017
from the Juvenile Court for Robertson County No. 08-32042
Joel Perry, Judge.
appeal involves a father's petition to modify an order
granting custody of his minor child to the maternal
grandparents. The father alternatively requested an order
granting him specific visitation. The juvenile court
dismissed the petition on the grandparents' motion. After
our review of the petition, we conclude the juvenile court
appropriately dismissed father's request for a change of
custody based solely upon the presumption of superior
parental rights. But the court erred in dismissing the
father's request for visitation. Accordingly, we affirm
in part and reverse in part.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed in Part; Reversed in Part; and Remanded
Nathan Hunt, and Zachary L. Talbot, Clarksville, Tennessee,
for the appellant, Jonathan Harper.
Jennifer L.E. Williams, Springfield, Tennessee, for the
appellees, Steve Harris and Faith Harris.
Neal McBrayer, J., delivered the opinion of the court, in
which Andy D. Bennett and Richard H. Dinkins, JJ., joined.
NEAL McBRAYER, JUDGE.
Factual and Procedural Background
Anne Harper ("Mother") and Jonathan Harper
("Father") are the biological parents of a minor
child, Lexi, born in 2005. Steve and Faith Harris
("Grandparents") are the child's maternal
January 4, 2006, Grandparents filed an emergency petition for
temporary custody of the child in the Juvenile Court for
Robertson County, Tennessee. The petition alleged that
Mother, Father, and Lexi had resided in Grandparents'
home since May 2005 and that both parents had since moved
out, leaving the child in Grandparents' care. It further
alleged that the child was "in immediate risk of harm,
" citing Father's violent history and Mother's
instability. On the same day, the juvenile court
granted emergency temporary custody to Grandparents after
finding probable cause to believe that the child was
dependent and neglected.
preliminary hearing on January 13, 2006, at which Mother,
Father, Grandparents, and two additional witnesses testified,
the court again found probable cause to believe that the
child was dependent and neglected. The juvenile court ordered
that temporary legal custody remain with Grandparents,
granted separate visitation to the parents, and ordered both
parents to pay child support. A final adjudicatory hearing
was scheduled for February 15, 2007; however, the hearing
never took place.
October 26, 2006, Grandparents filed a motion to change
Father's visitation from unsupervised to supervised
because, according to the motion, he had been charged with
physically assaulting Mother. Grandparents also filed a
motion for default judgment, asking the magistrate judge to
grant them permanent custody because neither parent had
responded or filed an answer to the petition. Both motions
were scheduled to be heard on November 2, 2006. The
certificate of service on the motion for default judgment
indicated that a copy of the motion was mailed or
hand-delivered to Father on October 24, 2006, at an address
in Missouri where Father had allegedly moved.
did not appear at the November 2, 2006 hearing. After hearing
oral argument and reviewing the record, the magistrate judge
granted a default judgment against both parents "due to
their failure to file an answer to the petition, "
granted custody to Grandparents, and suspended Father's
visitation. The court further ordered the final hearing
scheduled for February 15 to be removed from the docket.
Again, according to the certificate of service, a copy of the
order was mailed or hand-delivered to Father at the same
Missouri address on November 14, 2006.
did not appeal the 2006 custody order. However, in the decade
following its entry, Father made several filings seeking to
modify the custody arrangement. First, on January 28, 2010,
Father filed a notice of appearance and, on March 10, 2010,
filed a petition to modify custody. After a hearing, the
magistrate judge declined to modify custody because Father
failed to establish a material change in circumstances
sufficient to alter the primary residential parent. Father
did not appeal the decision.
in June 2010, Father filed a motion seeking a specific
visitation schedule. The magistrate judge awarded him a
limited amount of visitation pending a hearing on his motion,
but Father withdrew his motion before the hearing.
on April 21, 2015, Father filed a new petition for custody,
or in the alternative, for entry of a parenting plan setting
specific parenting time. The petition did not assert a
material change of circumstances had occurred. Instead,
Father claimed that the magistrate judge should have granted
him custody in 2010 based on his superior rights as the
Grandparents filed a motion to dismiss Father's petition
for failure to state a claim upon which relief can be
granted. Grandparents' motion asserted, among other
things, that Father's claim of superior parental rights
was barred ...