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Ellington v. Maddox3/12/2001
Natural father filed a petition to obtain custody of his son against the maternal grandmother and her husband, the child's custodians by previous court order. After an evidentiary hearing, the juvenile court denied father's petition and retained custody in the maternal grandmother and husband. Father appeals, and we reverse.
Tenn.R.App.P. 3; Appeal as of Right; Judgment of the Juvenile Court Vacated and Remanded
W. Frank Crawford, P.J., W.S., delivered the opinion of the court, in which Alan E. Highers, J. and Holly Kirby Lillard, J., joined.
OPINION
Petitioner, Timothy Joe Ellington (Father), appeals the order of the juvenile court denying his petition to change custody of his minor son, Conner Ellington, against respondents, Linda Maddox and Rickey Maddox (Maddoxes), the child's natural grandmother and step-grandfather, respectively. We vacate the decision of the Haywood County Juvenile Court denying Father custody, because the evidence does not support a finding that the award of custody to the natural father would subject the child to a substantial threat of harm.
The child was born out of wedlock on September 24, 1993. The mother, Kimberly Dawn Haywood, now Rosson, filed a petition to establish paternity on September 22, 1994, naming Timothy Joe Ellington as father of the child. On November 2, 1994, an order was entered declaring Mr. Ellington the natural father and ordering him to pay child support .
For most of the child's life, he has resided in the home of his maternal grand-mother, Linda Maddox and step grand-father, Rickey Maddox. On September 22, 1994, while the paternity action was pending and prior to the court order establishing paternity, the Maddoxes filed a petition for temporary custody alleging that the mother, who lived with them at the time, was unable to properly care for the child and regularly left him unprovided for and unattended. No action was taken on this petition. On April 18, 1995, after the order of paternity was entered, they filed another petition requesting temporary custody and that they receive Father's child support payments ordered to be paid to the mother. The mother joined in this petition. On June 15, 1995, Father filed a petition seeking custody of the child. At the hearing on these petitions, the Maddoxes withdrew their petition by oral motion. By order entered in January 16, 1996, the mother retained custody, and Father was allowed liberal visitation. On September 11, 1997, the Maddoxes filed a petition for emergency temporary custody of the child, alleging that the child was dependent and neglected, and in imminent danger if he continues to reside with the mother. Temporary custody was awarded to the Maddoxes on September 11, 1997. On October 30, 1997, an order was entered granting custody to the Maddoxes because of the mother's violation of a previous order.
On April 13, 1998, the mother filed a petition for change of a custody against the Maddoxes alleging a substantial change in circumstances. On May 8, 1998, Father filed an answer and cross-claim admitting that there had been a substantial change in circumstances and that a parent should be awarded custody. The cross-claim averred that no allegations or findings have been made that he was an unfit parent, or that he had contributed to the conditions giving rise to the child's removal from the custody of the mother. Father further averred that he has paid required child support and has developed a substantial relationship with his son. Father sought custody of the child in the event that it was not restored to the mother. Apparently, no action was taken on these petitions.
On August 20, 1999, the mother filed a
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