Session June 21, 2017
from the Juvenile Court for Hamilton County No. 267068,
267592, 268180 Robert D. Philyaw, Judge
appeal concerns a change of child custody. Jonathan B.
("Father") filed a petition against Tabitha O.
("Mother") in the Juvenile Court for Hamilton
County ("the Juvenile Court") seeking to become the
primary residential parent of the parties' minor child,
Wyatt B. ("the Child"). After a trial, the Juvenile
Court found a material change in circumstance sufficient to
modify custody and that changing the Child's primary
residential parent from Mother to Father was in the
Child's best interest. Mother appeals. We affirm the
judgment of the Juvenile Court.
R. App. P. 3 Appeal as of Right; Judgment of the Juvenile
Court Affirmed; Case Remanded
Jacqueline Strong Moss, Chattanooga, Tennessee, for the
appellant, Tabitha O.
B. Pyle, Chattanooga, Tennessee, for the appellee, Jonathan
Michael Swiney, C.J., delivered the opinion of the court, in
which Charles D. Susano, Jr. and John W. McClarty, JJ.,
MICHAEL SWINEY, CHIEF JUDGE
and Father are parents of the Child, who was born in October
2009. Mother and Father never married. Ten months after the
Child's birth, Mother and Father separated. The Child
suffers from eosinophilic esophagitis. In 2011, a parenting
plan was entered by court order. Mother was designated
primary residential parent under the original plan. Father
was to have the Child every other weekend, with additional
time as agreed. At one point, Mother relocated to North
Carolina from Tennessee. Father filed a petition in
opposition to the relocation. Father also petitioned for
custody of the Child. Additional procedural events unfolded
in this case leading to a trial on the issue that is now
before us on appeal: whether a material change in
circumstance occurred sufficient to modify the Child's
primary residential parent from Mother to Father. The trial
was in July and September 2016. We next cite to the relevant
testimony from trial.
Kevin Otto ("Otto") of the Chattanooga Police
Department testified. Otto stated that he had been to
Mother's home several times in the past year at
Father's request. According to Otto, a court order
reflected that Father was entitled to visit the Child on
certain occasions, but that Father's access to the Child
had been denied. However, Otto also testified to one incident
in which he planned to take out a warrant against Father for
custodial kidnapping had Father not returned the Child to
Mother by midnight.
testified, in part, as follows:
Q. Okay. Are there any other problems that are going on that
you want the judge to address when he issues his ruling in
A. Other problems have been that she just takes everything in
her own hands. She pretty much just thinks everything is her
idea and it's going to go her way. And there's
usually nothing I can do about it. So that has been a
Q. Give some examples.
A. Like going to pick him up. I always think that it should
be me and her that does the exchange, where she always throws
her grandparents in it so she don't have to deal with it.
I mean, I have to be there. I don't see why she
doesn't have to be there. And she says she doesn't,
so she's not.
Q. And you have a mother that's very involved with the
Q. All right. There was a period of time -- let's talk a
little bit about the doctors. When Wyatt was first involved
with medicine, when he first got -- discovered this, it was
discovered by a Chattanooga doctor; is that right?
A. Yes. It was discovered by Jeremy Screws at T. C. Thompson.
Q. Okay. And when did -- when and why did Dr. Screws get out
of the picture?
A. She -- there was a visitation where I got him and he was
supposed to have vegetables only, I believe, is what it was
at that time, or soy only, and she had sent beef stew with me
for him to eat. Of course, he was not supposed to have
potatoes. And there was potatoes in the soup. Well, she told
me, "Well, just take the potatoes out." Well, to
me, that did not seem right. So I actually took him to Dr.
Screws and confronted him about it. And Dr. Screws was going
to turn her in for -- I forget how it was worded. But neglect
of feeding him right. She wasn't feeding him right. So as
soon as she caught word of that, she left Dr. Screws and went
to Vanderbilt. I guess so that she didn't get in trouble.
Q. All right. And how long were y'all with Vanderbilt?
A. About three or four years, I believe.
Q. All right.
A. It was a good amount of time.
Q. How did you-all and Tabitha get along with the Vanderbilt
A. At first I was not even allowed to be involved. She had me
blocked from everything. I had to eventually come to the
Court and get a piece of paper saying that I had rights to be
there. And I had to submit them to all of his doctors. I had
to find all his doctors myself. I had to call Vanderbilt. I
went through trouble just trying to find out when his
appointments were. It wasn't until he had been there
about a year later, I finally got all the doctors on the same
page and it all started to work. Towards the end it worked
well. All the doctors knew who I was, knew who she was, and
knew the situation. So it all worked very well in the end.
And, in my opinion, they fixed it.
Q. All right. Tell the Court what problems you've been
having when you get notified of doctor's appointments and
A. The last one I had the biggest problem with was the
dietitian appointment. And I took off work the whole day and
I sat in the doctor's office for up to two hours waiting
on Tabitha and Wyatt to show up. They never showed up. They
never called in to reschedule. And I was never told of a
reschedule date. Other times I've had problems. I have to
call the doctor myself and get when his next dates are, next
appointments. But here recently she's told me about a
couple in October. I think October the 19th is the next one.
Recently has been the only time she's ever told me
without me having to find out first. She's never told me
when she found out.
Q. Okay. And under this new agreement, assuming it's
acceptable to the Court and it's approved by the Court,
you would still want to make sure that if she changes the
date, you find out when she finds out?
Q. Now, you said you sat there for two or three hours. When
did you actually find out that that appointment had been
A. I actually went up -- after an hour and 45 minutes, I
think it was, I finally got up and went to the front desk and
asked how long it takes till they actually cancel the
appointment. And they said, "Well, usually an hour or
two." And I said, "Well, it's been almost two
hours." So they wrote me a note saying that -- like,
what they would send her in the mail, saying that she
didn't show up and she needed to call in and reschedule.
And I never was notified of the reschedule. So about two
Q. Did you eventually find out when it was rescheduled?
A. After it happened, yes.
A. So after it happened, she called me and provided me the
next weekend I picked him up with the paperwork. But this was
after the appointment. So I never had ...