David and Kimberly Hodgin, of Dickson, argue in court documents that the juvenile judge erred when he ordered that custody of Sonya McCaul be awarded to John McCaul, who lives in Nebraska.
The Hodgins say the judge mistakenly thought the law required him to award custody to the biological parent without consideration of the 9-year-old's best interest.
According to court documents, Sonya's biological parents split up shortly after she was born and John McCaul took custody. Later that year, Sonya's baby sitter needed to go to Tennessee to help an ill family member and she took Sonya with her, with McCaul's permission.
The Tennessee Department of Children's Services soon took custody of Sonya. She was placed in the Hodgin home the same month that McCaul was taken into federal custody, where he served seven-and-a-half years for unlawful transport of firearms.
In July 2006, the Kimberly and David Hodgin petitioned to terminate the parental rights of the biological parents and adopt Sonya. The biological mother did not object and her rights were terminated, but McCaul did object.
At the same time the Hodgins were trying to adopt Sonya, the Department of Children's Services was considering placing the child with her paternal grandmother. In August 2006, the grandmother's home was approved as suitable for the child. The grandmother filed a motion to intervene in the custody case.
The court dispute dragged on. After McCaul was released from prison, the Hodgins and McCaul agreed to slowly reintroduce him into Sonya's life with the assistance of a counselor. But after several months, that process broke down, and in January, McCaul filed a motion to return custody to him. A Dickson County Juvenile Court judge ruled in McCaul's favor and Sonya was transferred to McCaul, whom she had not seen since she was an infant, that same day.
At a Friday hearing, the Hodgins are asking the judge to overturn his previous decision, claiming it was based on a principal that gives superior custody rights to parents over non-parents. The Hodgins argue the "superior rights" doctrine applies only when custody is initially awarded, not where a custody arrangement already in place is being modified. In this case, they argue, the judge should have held a hearing to determine what arrangement was in Sonya's best interest before granting custody to McCaul.
The Hodgins also fault the Department of Children's Services for its handling of Sonya's case.
Department spokesman Rob Johnson issued a statement saying DCS "has worked hard to see that this child's needs have been met. We developed a transition plan and did our best to carry it out.
"We recognize that foster families often come to love the children who stay in their homes. At the same time, birth families have the right to raise their children."
Johnson also said child welfare workers in Nebraska have reported that Sonya is doing "very well" there.