Tennessee divorce and custody attorneys should take note of the recent Appellate case entitled Shultz v. Shultz, No. E2011-00874-COA-R3-CV, which emphasized the best interest review when modifying a custody order or parenting plan.
The parties married in 2000, had a child in 2003 and filed for divorce in July 2008. Mother filed in Knox County, requesting a temporary parenting plan (TPP) via Local Rule 28 with an affidavit alleging Father was unstable and had anger issues. The trial court entered the TPP, giving Father visitation every other weekend. The parties settled and filed a permanent parenting plan (PPP) which the Court approved, giving Father 120 coparenting days every year.
In 2009, Mother filed a petition to modify alleging a material change of circumstance. Father responded by requesting equal co-parenting time. The trial court ordered that the Father could not have overnight visitation with the child unless and until he stopped cohabitating with his paramour (whom he later married). In 2010 Mother made a filing alleging Father lived with seven other people, that a minor living there was facing criminal charges for alcohol use, that a domestic abuse police call occurred at the residence, and that the school had informed Mother that the child had written a "disturbing message with sexual content." DCS investigated this incident and found the child had been exposed to inappropriate amounts of information regarding sex. The trial court then entered a new TPP giving Father day-only visitation every other weekend.
After a hearing, the trial court found that Mother constantly instigated investigations (police, fire marshal, DCS) against Father which were all unfounded and that Father was hardworking and trustworthy. Therefore, the court ordered fifty-fifty coparenting and joint decision making.
Mother then switched counsel (resulting in the trial judge changing due to a conflict) and filed a TRCP Rule 59 Motion asking that the order be set aside and/or for a new trial. The new judge denied this and affirmed the trial court. The Mother appealed.
Modification of a parenting plan is a two-step process under T.C.A. §§36-6-101(a)(2)(B) and (C). First, the petitioner must show a material change of circumstance has occurred, a standard that is higher for a change of custody than a change of residential parenting schedule. If such a change is proven, the court must turn to a best interests determination which includes a variety of factors found in T.C.A. §36-6-101(a)(1)-(10). These factors include emotional ties between child and parent, ability of parents to provide, continuity, stability of family unit, parents' mental and physical health, the home/school/community record of child, reasonable preference of a child twelve years or older, evidence of physical or emotional abuse, character and behavior of third parties who interact with the child, and each parent's past and potential parenting.
Here, the Appeals Court concluded the trial court did not make a comprehensive best interest review in light of the following: lack of consideration of Mother's history as primary caregiver; lack of evidence showing Mother was unwilling or unable to provide; lack of evidence showing Father's ability since his remarriage had improved; Mother's proven stability; and the character and behavior of third parties living in Father's home. Accordingly, the Appellate Court found the Father failed to meet his best interests burden. Therefore, the case was reversed and remanded to the trial court for a new hearing on the best interests standard and revision of the schedule.
