The case of Reed v. Reed, No. M2011-00980-COA-R3-CV (Tenn. March 30, 2012) shows Tennessee divorce and custody attorneys how to use one parent's failure to adhere to a parenting plan or court order to win a modification petition.
Mother and Father divorced in 2010, with Mother named as primary residential parent "PRP." However, Mother was enjoined from allowing her paramour to have contact with the children, and both parties could not allow unrelated, overnights guests in the home when the children were present. Later in 2010, Father filed a contempt action and requested that the parenting plan be changed, based upon Mother having allowed the paramour to live with her and the children. Father then filed an emergency motion for custody, granted by the court based upon Mother's dishonesty and failure to abide by the order pertaining to the paramour. A hearing was held and the court found a material change of circumstances existed and it was in the best interest of the children for Father to be named PRP based upon: flagrant violation of the order by Mother, and her "spending a lot of energy hiding [the paramour]."
Here, Father's burden was to show a substantial and material change of circumstances to get the PRP changed. T.C.A. §36-6-101(a)(2)(B) declares the following:
"A material change of circumstance may include, but is not limited to, failures to adhere to the parenting plan or an order of custody and visitation or circumstances that make the parenting plan no longer in the best interest of the child."
Here, the evidence established that Mother clearly violated the order, based on the court's finding that Mother's denial of the same was not credible. A private investigator testified that she witnessed the paramour at Mother's residence, saw his car parked outside late at night and early in the morning and saw him with one of the children in his car outside of Mother's presence. The investigator also submitted photographic evidence of this as well as a certified copy of the paramour's license plate matching the photographs. The paramour also apparently listed Mother's address as his home address on his driver's license.
The Appellate Court noted that Father did not have to prove that this change was a substantial risk of harm to the children under T.C.A. §36-6-101(a)(2)(B) to meet the material change standard, and affirmed the trial court's decision.
Next, the Appellate Court reviewed the best interests determination that follows all material change findings. Mother argued that the court failed to make the required finding. The Appellate Court found that the trial court "made little more than a generic best interest conclusory finding; it did not articulate any findings regarding the statutory factors other than to generally address Mother's violations..." The Appellate Court, under the best interests factors, found the following: Mother failed to take the children to scheduled dental visits; Mother made the children late for school on two occasions; Father had been the primary caregiver since named PRP; and Mother's refusal to allow the trial court to meet or question in person the paramour (noting that T.C.A. §36-6-106(a)(9) allows the court to consider the character and behavior of any other person who resides in or frequents the home of the parent). Therefore, the Appellate Court found that the children's best interest affirm the trial court's designation of the Father as PRP.