Court of Appeals Clarifies Procedure for Petitions to Modify Custody

In Tennessee, an order is generally “final” thirty days after it has been entered.  Where child custody matters are concerned, however, the trial courts retain “exclusive and continuing jurisdiction.”  This has often resulted in confusion with respect to the proper procedure when one parent wants to ask the court to modify custody, because there is a statutory requirement that a parent petition the court to make a change and file with the petition a new proposed parenting plan. If a court is under the impression that it is already exercising continuing jurisdiction, sometimes the formalities of the petition process are overlooked, and this has resulted in confusion among parents and lawyers alike. 

The Court of Appeals’ recent opinion in Freeman v. Freeman should provide some much-needed clarity. The Court in Freeman explains that, once the case is closed after a final order (a concept that has a particular legal meaning), a trial court cannot act unless a parent files a petition to change custody or otherwise makes a motion to alter the judgment. However, if the parent petitioning the court fails to file the proposed parenting plan required by the statute, this does not mean that the court lacks jurisdiction to rule on the parent’s request. 

While this opinion is helpful, it doesn’t clear all questions in the area. For example, it is often difficult even for experienced lawyers to determine whether an order is truly “final,” and it is still unclear whether a Rule 60 motion can be used to bypass the petition process. Further, the lack of a penalty for failure to file a proposed parenting plan could incentivize petitioners to shortcut the process.  The best advice is still to read procedural rules carefully and follow them to the letter.